TikTok: Frequently Asked Questions and Issues for Congress

Changes from April 9, 2024 to May 14, 2024

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TikTok: Frequently Asked Questions and Issues ~~April 9~~May 14, 2024 , 2024
for Congress
Michael D. Sutherland,
Since 2018, the social media application TikTok, developed and owned by ByteDance Ltd. Since 2018, the social media application TikTok, developed and owned by ByteDance Ltd.
Coordinator
(ByteDance), has become one of the most popular social media platforms in the United States, (ByteDance), has become one of the most popular social media platforms in the United States,
Analyst in International Analyst in International
and raised oversight and legislative issues for Congress. With short-form video format and and raised oversight and legislative issues for Congress. With short-form video format and
Trade and Finance Trade and Finance
sophisticated content recommendation algorithms and usability design, TikTok achieved sophisticated content recommendation algorithms and usability design, TikTok achieved

significant market penetration in the United States, amid competition with other social media significant market penetration in the United States, amid competition with other social media
~~Kristen E. Busch,~~Peter J. Benson
platforms such as Meta (formerly Facebook), Instagram, X (formerly Twitter), and Snapchat. platforms such as Meta (formerly Facebook), Instagram, X (formerly Twitter), and Snapchat.
~~Coordinator~~
~~Analyst in Science and~~
Legislative Attorney TikTok’s short-form video application was initially developed by musical.ly, a company founded TikTok’s short-form video application was initially developed by musical.ly, a company founded
~~Technology Policy~~
in the People’s Republic of China (PRC or China)in the People’s Republic of China (PRC or China), but but that primarily primarily ~~operating~~operated in the United in the United ~~States.~~

~~In 2018, musial~~ Kristen E. Busch States. In 2018, musical.ly was acquired by ByteDance, a firm incorporated in .ly was acquired by ByteDance, a firm incorporated in ~~Cayman Islands with~~
~~Peter J. Benson,~~
~~headquarters in Beijing, China, and relaunched~~the Cayman Analyst in Science and Technology Policy Islands with headquarters in Beijing, China. ByteDance relaunched musical.ly as TikTok, ~~as TikTok,~~ operated by TikTok Ltd., also operated by TikTok Ltd., also
~~Coordinator~~
incorporated in the Cayman Islands and headquartered in Los Angeles and Singapore. TikTok incorporated in the Cayman Islands and headquartered in Los Angeles and Singapore. TikTok
~~Legislative Attorney~~
Ltd. is owned by ByteDanceLtd. is owned by ByteDance ~~Ltd. TikTok~~ . TikTok operates in many countries, but it is not available in China. is not available in China.

Since Since ~~its~~TikTok’s launch in the United States, some policymakers, technical experts, and Members of launch in the United States, some policymakers, technical experts, and Members of
~~For a copy of the full report,~~
Congress have expressed concerns regarding Congress have expressed concerns regarding ~~TikTok’s~~its ownership structure and potential ownership structure and potential
~~please call 7-5700 or visit~~
implications for U.S. national security and the data privacy and security of U.S. users. Some implications for U.S. national security and the data privacy and security of U.S. users. Some
~~www.crs.gov.~~
Members have argued that ByteDance, as a PRC-headquartered company, is subject to potential Members have argued that ByteDance, as a PRC-headquartered company, is subject to potential
PRC government pressure through various PRC laws and regulations governing intelligence, cybersecurity, and data security. PRC government pressure through various PRC laws and regulations governing intelligence, cybersecurity, and data security.
They argue that the PRC government could apply these laws and regulations to compel ByteDance to turn over U.S. user They argue that the PRC government could apply these laws and regulations to compel ByteDance to turn over U.S. user
data. Some Members have contended that the PRC government could potentially use TikTok as a platform for influencing data. Some Members have contended that the PRC government could potentially use TikTok as a platform for influencing
public opinion in the United States or conducting malign activities such as spreading misinformation or interfering in public opinion in the United States or conducting malign activities such as spreading misinformation or interfering in
elections. Some Members have also expressed broader concerns related to TikTok’s content moderation and online safety elections. Some Members have also expressed broader concerns related to TikTok’s content moderation and online safety
policies, particularly those that govern online protection for minors. Proponents of TikTok emphasize its role as a platform policies, particularly those that govern online protection for minors. Proponents of TikTok emphasize its role as a platform
for accessing information, sharing content, generating revenue for small businesses and for accessing information, sharing content, generating revenue for small businesses and ~~entrepreneur~~entrepreneurs, as well as its relatively , as well as its relatively
similar data and content moderation practices compared to other social media competitors. similar data and content moderation practices compared to other social media competitors.
To date, both the executive branch and Congress have taken actions to address concerns about TikTok’s ownership structure To date, both the executive branch and Congress have taken actions to address concerns about TikTok’s ownership structure
and implications for national security and data privacy. In 2020, the Trump Administration issued orders that wouldand implications for national security and data privacy. In 2020, the Trump Administration issued orders that would have, , among among
other things, other things, ~~prohibit~~prohibited U.S. entities from conducting transactions with TikTok and U.S. entities from conducting transactions with TikTok and ~~require~~required TikTok’s parent company TikTok’s parent company
ByteDance to divest from TikTok. TikTok challenged these actions in court. In January 2021, the Biden Administration ByteDance to divest from TikTok. TikTok challenged these actions in court. In January 2021, the Biden Administration
rescinded some of the Trump Administration’s actions and issued new executive actions to address the broader national rescinded some of the Trump Administration’s actions and issued new executive actions to address the broader national
security implications of PRC social media platforms in the United States. In security implications of PRC social media platforms in the United States. In ~~the 118th Congress, Members have introduced~~
~~legislation to build on and expand existing executive authorities and actions taken against TikTok, including S. 686, the~~
~~Restricting the Emergence of Security Threats that Risk Information and Communications Technology Act (RESTRICT~~
~~Act), which was introduced in the Senate, and H.R. 7521, The Protecting Americans from Foreign Adversary Controlled~~
~~Applications Act, which passed the House on March 13, 2024~~April 2024, Congress enacted the Protecting Americans from Foreign Adversary Controlled Applications Act as part of a larger appropriations bill—P.L. 118-50—which prohibits certain services from enabling the distribution, maintenance, or updating of a “foreign adversary controlled application” in the United States unless the covered application’s owners execute a “qualified divestiture” within a specified time frame. The statute expressly includes applications operated by TikTok or its parent company ByteDance in the definition of a foreign adversary controlled application. .
This report compiles responses to frequently asked questions (FAQs) regarding TikTok, its ownership and the corporate This report compiles responses to frequently asked questions (FAQs) regarding TikTok, its ownership and the corporate
structure of ByteDancestructure of ByteDance ~~Ltd.~~, and potential national security and data privacy concerns related to the platform. This report also , and potential national security and data privacy concerns related to the platform. This report also
summarizes summarizes ~~past executive action and legislation that sought to address these concerns~~government actions that have aimed to address these concerns at the federal and state level, analyzes the Protecting Americans from Foreign Adversary Controlled Applications Act (P.L. 118-50), and examines potential constitutional , and examines potential constitutional
considerations and policy implications for considerations and policy implications for ~~legislation and oversight that Congress could consider related to~~certain regulations of TikTok. TikTok.

Congressional Research Service Congressional Research Service

TikTok: Frequently Asked Questions and Issues for Congress

Background
This report compiles frequently asked questions (FAQs) regarding TikTok, its ownership and the This report compiles frequently asked questions (FAQs) regarding TikTok, its ownership and the
corporate structure of ByteDance Ltd.corporate structure of ByteDance Ltd. (hereinafter referred to as ByteDance), and potential national security and data privacy concerns , and potential national security and data privacy concerns
related to the platform. This report also summarizes related to the platform. This report also summarizes ~~past executive action and legislation that~~
~~sought to address these concerns~~government actions that have aimed to address these concerns at the federal and state level, analyzes the Protecting Americans from Foreign Adversary Controlled Applications Act (P.L. 118-50), and examines potential constitutional considerations and policy , and examines potential constitutional considerations and policy
~~implications for legislation and oversight that Congress could consider related to~~implications for certain regulations of TikTok. TikTok.
TikTok’s Functionality, Users, and Business
Operations
What is TikTok?
TikTok is a social media application—one of the most popular social media platforms in the TikTok is a social media application—one of the most popular social media platforms in the
United States—that allows users to easily generate, post, and share short-form videos, typically United States—that allows users to easily generate, post, and share short-form videos, typically
ranging from 15 to 60 seconds in length. TikTok selects and displays videos for individual users ranging from 15 to 60 seconds in length. TikTok selects and displays videos for individual users
based on their user interactions (likes, shares, and comments), video metadata (hashtags, captions, based on their user interactions (likes, shares, and comments), video metadata (hashtags, captions,
and sounds), and the device and account settings (language preference, device type, etc.). TikTok and sounds), and the device and account settings (language preference, device type, etc.). TikTok
is owned by TikTok Ltd., a subsidiary of ByteDanceis owned by TikTok Ltd., a subsidiary of ByteDance ~~Ltd. (hereinafter referred to as ByteDance),~~
, and is the global counterpart to and is the global counterpart to Douyin, ByteDance’s short-form video application that the , ByteDance’s short-form video application that the
company launched for users in China in 2016.1 TikTok and company launched for users in China in 2016.1 TikTok and Douyin share certain core features, share certain core features,
though they reportedly use separate algorithms tailored to promote content to their respective though they reportedly use separate algorithms tailored to promote content to their respective
audiences.2 audiences.2
How many users does TikTok claim to currently have?
According to TikTok’s estimates, as of March 2024, its user base had more than 170 million According to TikTok’s estimates, as of March 2024, its user base had more than 170 million
monthly active users (MAUs) in the United States and 7 million businesses that market or monthly active users (MAUs) in the United States and 7 million businesses that market or
advertise on the platform.3 In 2021, TikTok announced that it had surpassed more than 1 billion advertise on the platform.3 In 2021, TikTok announced that it had surpassed more than 1 billion
MAUs across the world.MAUs across the world.~~4According~~4 According to the Pew Research Center, TikTok “stands out for growth of to the Pew Research Center, TikTok “stands out for growth of
its user base” among U.S. adults, with 33% of adults reporting using it in 2023, up 12% from its user base” among U.S. adults, with 33% of adults reporting using it in 2023, up 12% from
2021.5 2021.5
~~How did TikTok become so popular?~~
~~Some experts attribute the rapid growth of TikTok’s user base in the United States in part to the~~
~~ByteDance 2018 acquisition of competitor musical.ly, which had an estimated base of~~
~~approximately 100,000 U.S. MAUs at the time of the acquisition.6 In August 2018, ByteDance~~

1 Emma Lee, “Toutiao Parent Launches Global Competitor to musical.ly,” 1 Emma Lee, “Toutiao Parent Launches Global Competitor to musical.ly,” Technode, September 14, 2017. , September 14, 2017.
2 2 ~~Su, C., &~~Chumeizi Su and Bondy Valdovinos Kaye, Valdovinos Kaye, B. “Borderline “Borderline ~~practices~~Practices on Douyin/TikTok: Content on Douyin/TikTok: Content ~~transfer and algorithmic~~
~~manipulation,” 2023,~~Transfer and Algorithmic Manipulation,” Media, Culture & Society, , ~~1534–~~vol. 45, no. 8 (November 2023), pp. 1534-1549, available at https://doi.org/10.1177/01634437231168308. 1549, available at https://doi.org/10.1177/01634437231168308.
3 TikTok, “Oxford Economics Reports: TikTok Contributed $24 Billion to U.S. Economy in 2023,” March 13, 2024, 3 TikTok, “Oxford Economics Reports: TikTok Contributed $24 Billion to U.S. Economy in 2023,” March 13, 2024,
available at https://newsroom.tiktok.com/en-us/tiktok-economic-impact-report-2024-smb. available at https://newsroom.tiktok.com/en-us/tiktok-economic-impact-report-2024-smb.
4 TikTok, “Thanks a 4 TikTok, “Thanks a ~~billion~~Billion!” September 27, 2021, !” September 27, 2021, available at https://newsroom.tiktok.com/en-us/1-billion-people-on-tiktok. https://newsroom.tiktok.com/en-us/1-billion-people-on-tiktok.
5 Jeffrey Gottfried, “Americans’ Social Media Use,” Pew Research Center, January 31, 2024, 5 Jeffrey Gottfried, “Americans’ Social Media Use,” Pew Research Center, January 31, 2024,
available at https://www.pewresearch.org/internet/2024/01/31/americans-social-media-use/https://www.pewresearch.org/internet/2024/01/31/americans-social-media-use/. Congressional Research Service 1 TikTok: Frequently Asked Questions and Issues for Congress How did TikTok become so popular? Some experts attribute the rapid growth of TikTok’s user base in the United States in part to the ByteDance 2018 acquisition of competitor musical.ly, which had an estimated base of approximately 100,000 U.S. MAUs at the time of the acquisition.6 In August 2018, ByteDance
~~6 William Alan Reinsch, Patrick Saumell, et.al, “TikTok Is Running out of Time: Understanding the CFIUS Decision~~
~~and Its Implications, Center for Strategic and International Studies, September 2, 2020.~~
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~~TikTok: Frequently Asked Questions and Issues for Congress~~

officially rebranded the musical.ly app as TikTok and migrated musical.ly users to new TikTok officially rebranded the musical.ly app as TikTok and migrated musical.ly users to new TikTok
accounts.7 A key feature of TikTok’s service is the company’s recommendation algorithm, which accounts.7 A key feature of TikTok’s service is the company’s recommendation algorithm, which
is a system that sorts, curates, and disseminates content deemed relevant to specific users. is a system that sorts, curates, and disseminates content deemed relevant to specific users.
Who owns TikTok?
TikTok Ltd., a holding company incorporated in the Caribbean Overseas British Territory of TikTok Ltd., a holding company incorporated in the Caribbean Overseas British Territory of
Cayman Islands, directly owns TikTok. ByteDance Ltd., a holding company incorporated in the Cayman Islands, directly owns TikTok. ByteDance Ltd., a holding company incorporated in the
Cayman Islands and with core business operations and leadership located in China, directly owns Cayman Islands and with core business operations and leadership located in China, directly owns
TikTok Ltd.8 TikTok Ltd. lists its global headquarters as Los Angeles and Singapore.9 Its Chief TikTok Ltd.8 TikTok Ltd. lists its global headquarters as Los Angeles and Singapore.9 Its Chief
Executive Officer (CEO), Shou Zi Chew, a citizen of Singapore, operates out of both Executive Officer (CEO), Shou Zi Chew, a citizen of Singapore, operates out of both ~~headquaters,~~
headquarters, according to statements Chew made to a U.S. media outlet in February 2024.10 according to statements Chew made to a U.S. media outlet in February 2024.10
Who owns ByteDance, and where is it located?
ByteDance is incorporated in the Cayman Islands. The company has listed its operational ByteDance is incorporated in the Cayman Islands. The company has listed its operational
headquarters and primary place of business as Beijing, China (PRC or China).11 Some legal headquarters and primary place of business as Beijing, China (PRC or China).11 Some legal
experts also note that the majority of granted patents related to ByteDance’s core software experts also note that the majority of granted patents related to ByteDance’s core software
applications are registered in China and held by Beijing Douyin Information Services Co., Ltd., a applications are registered in China and held by Beijing Douyin Information Services Co., Ltd., a
subsidiary of ByteDance that houses ByteDance’s key personnel, infrastructure, and conducts the subsidiary of ByteDance that houses ByteDance’s key personnel, infrastructure, and conducts the
firm’s operations in China. In March 2023 testimony before the House Energy and Commerce firm’s operations in China. In March 2023 testimony before the House Energy and Commerce
Committee, TikTok CEO Shou Zi Chew, when asked whether ByteDance is a PRC company, said Committee, TikTok CEO Shou Zi Chew, when asked whether ByteDance is a PRC company, said
“ByteDance owns many businesses that operate in China,” and “was founded by Chinese “ByteDance owns many businesses that operate in China,” and “was founded by Chinese
entrepreneurs.”12 In January 2024 testimony before the Senate Judiciary Committee, Shou stated entrepreneurs.”12 In January 2024 testimony before the Senate Judiciary Committee, Shou stated
that “ByteDance is a global company and not a Chinese company.”13 that “ByteDance is a global company and not a Chinese company.”13
~~What is ByteDance’s relationship to the People’s Republic of China (PRC)?~~
~~ByteDance is a privately-held company, and details on its global operations and ultimate~~
~~shareholding structure are not widely available, beyond information published by ByteDance.~~
~~Several experts and policymakers consider ByteDance to be ultimately subject to the jurisdiction~~
~~of the PRC.14 In its official corporate structure, ByteDance currently lists all of its global~~

~~7 Dami Lee, “The popular Musical.ly app has been rebranded~~ 6 William Alan Reinsch et al., “TikTok Is Running Out of Time: Understanding the CFIUS Decision and Its Implications,” Center for Strategic and International Studies, September 2, 2020. 7 Dami Lee, “The Popular Musical.ly App Has Been Rebranded as TikTok,” as TikTok,” The Verge, August 2, 2018. August 2, 2018.
8 Marks & Clerk, “Artificial Intelligence 8 Marks & Clerk, “Artificial Intelligence ~~fuels~~Fuels TikTok’s TikTok’s ~~popularity; but could that very asset prevent its sale~~Popularity; but Could That Very Asset Prevent Its Sale?” ?”
September 15, 2020, available at https://www.lexology.com/library/detail.aspx?g=3f68400b-2d73-43e2-88d5-September 15, 2020, available at https://www.lexology.com/library/detail.aspx?g=3f68400b-2d73-43e2-88d5-
510c85ea6759. 510c85ea6759.
9 TikTok, “About TikTok,” available at https://www.tiktok.com/about?lang=en. 9 TikTok, “About TikTok,” available at https://www.tiktok.com/about?lang=en.
10 Dexter Thomas, “10 Dexter Thomas, “‘Over Time the Trust Will Come’: An Over Time the Trust Will Come’: An ~~exclusive~~Exclusive Interview Interview ~~With~~with TikTok’s CEO,” TikTok’s CEO,” Wired, February , February
1, 2024. 1, 2024.
11 Leadership and management position vacancies currently listed at ByteDance appear to be based in the company’s 11 Leadership and management position vacancies currently listed at ByteDance appear to be based in the company’s
Beijing, Shanghai, and Hong Kong offices: https://jobs.ByteDance.com/en/position?location=CT_11. For broader Beijing, Shanghai, and Hong Kong offices: https://jobs.ByteDance.com/en/position?location=CT_11. For broader
profiles of the company’s operations in China, see Wei Sheng and Tony Xu, “A profiles of the company’s operations in China, see Wei Sheng and Tony Xu, “A ~~tour~~Tour of ByteDance of ByteDance ~~headquarters~~Headquarters,” ,”
Technode, September 11, 2019; Jing Yang and Juro Osawa, “ByteDance’s China Business September 11, 2019; Jing Yang and Juro Osawa, “ByteDance’s China Business isIs Slowing, Putting Slowing, Putting
Spotlight on TikTok,” Spotlight on TikTok,” The Information, August 10, 2023. , August 10, 2023.
12 House of Representatives Committee on Energy and Commerce, 12 House of Representatives Committee on Energy and Commerce, TikTok: How Congress Can Safeguard American
Data Privacy and Protect Children ~~From~~from Online Harms, Hearing, 118th Hearing, 118th ~~Congress~~Cong., 1st sess., March 23, 2023, p. 131, , 1st sess., March 23, 2023, p. 131,
available at https://www.congress.gov/118/meeting/house/115519/documents/HHRG-118-IF00-Transcript-20230323.pdf. https://www.congress.gov/118/meeting/house/115519/documents/HHRG-118-IF00-Transcript-20230323.pdf.
13 U.S. Senate Committee on 13 U.S. Senate Committee on ~~The~~the Judiciary, Judiciary, Big Tech and the Online Child Sexual Exploitation Crisis, Full Committee Full Committee
Hearing, January 31, 2024,Hearing, January 31, 2024, available at https://www.judiciary.senate.gov/committee-activity/hearings/big-tech-and-the-online-https://www.judiciary.senate.gov/committee-activity/hearings/big-tech-and-the-online-
child-sexual-exploitation-crisis. child-sexual-exploitation-crisis.
~~14 Roger Chen and Rui Ma, “How ByteDance Became the World’s Most Valuable Startup,” Harvard Business Review,~~
~~(continued...)~~
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~~TikTok: Frequently Asked Questions and Issues for Congress~~

Congressional Research Service 2 TikTok: Frequently Asked Questions and Issues for Congress What is ByteDance’s relationship to the People’s Republic of China (PRC)? ByteDance is a privately held company, and details on its global operations and ultimate shareholding structure are not widely available, beyond information published by ByteDance. Several experts and policymakers consider ByteDance to be ultimately subject to the jurisdiction of the PRC.14 In its official corporate structure, ByteDance currently lists all of its global subsidiaries and offices, including its original PRC-based firm Beijing ByteDance Technology subsidiaries and offices, including its original PRC-based firm Beijing ByteDance Technology
Co., Ltd. (Beijing ByteDance), as subsidiaries of ByteDanceCo., Ltd. (Beijing ByteDance), as subsidiaries of ByteDance~~, Ltd.~~ in the Cayman Islands. In in the Cayman Islands. In
February 2023, ByteDance published an updated corporate structure in which it had renamed February 2023, ByteDance published an updated corporate structure in which it had renamed
Beijing ByteDance as Beijing Douyin Information Services Co., Ltd. (Beijing Douyin).15 Beijing ByteDance as Beijing Douyin Information Services Co., Ltd. (Beijing Douyin).15
ByteDance uses a variable interest entity (VIE) structure.16 China prohibits foreign investors from ByteDance uses a variable interest entity (VIE) structure.16 China prohibits foreign investors from
investing in China’s internet and telecommunications companies (among other types of investing in China’s internet and telecommunications companies (among other types of
companies). To access international capital under these restrictions, firms in China’s technology companies). To access international capital under these restrictions, firms in China’s technology
sectors (including ByteDance) frequently use a VIE structure. This structure relies on an offshore sectors (including ByteDance) frequently use a VIE structure. This structure relies on an offshore
holding company tied through a series of contracts to the PRC firm, which holds the core assets holding company tied through a series of contracts to the PRC firm, which holds the core assets
and conducts the firm’s global business. Overseas investors invest in the offshore entity, and conducts the firm’s global business. Overseas investors invest in the offshore entity,
commonly a holding company incorporated in a jurisdiction such as the Cayman Islands or commonly a holding company incorporated in a jurisdiction such as the Cayman Islands or
British Virgin Islands, and receive a share of the firm’s revenue without making any direct equity British Virgin Islands, and receive a share of the firm’s revenue without making any direct equity
investment in the core assets of the business.investment in the core assets of the business.17
Is TikTok available in China?
Internet users in China are not able to easily access TikTok; they are able to access Internet users in China are not able to easily access TikTok; they are able to access Douyin, ,
TikTok’s predecessor-turned-companionTikTok’s predecessor-turned-companion~~-application~~ application.17 Douyin is China’s most popular short-form video application, with a user interface and content recommendation algorithms similar to TikTok’s.18 U.S. and multinational digital platforms, .18 U.S. and multinational digital platforms,
including TikTok, are unable to operate legally in China due to restrictions on foreign investment including TikTok, are unable to operate legally in China due to restrictions on foreign investment
and operations in various technology and operations in various technology sectors.19 14 Roger Chen and Rui Ma, “How ByteDance Became the World’s Most Valuable Startup,” Harvard Business Review, ~~sectors.19~~
~~National Security and Data Privacy Concerns~~
~~Is ByteDance a PRC company?~~
~~ByteDance’s executives have maintained that ByteDance’s incorporation in the Cayman Islands~~
~~means that it should not be considered a PRC company. PRC officials have referred to ByteDance~~
~~as a PRC company and have cited the company’s obligations to comply with PRC data security~~
~~and export control regulations as factors that may impede or block a ByteDance divestment from~~
~~TikTok.20~~

February 24, 2022; Yaqiu Wang, “The Problem with TikTok’s Claim of Independence February 24, 2022; Yaqiu Wang, “The Problem with TikTok’s Claim of Independence ~~From~~from Beijing,” Beijing,” Human Rights
Watch, March 24, 2023. , March 24, 2023.
15 For a graphical representation of ByteDance’s corporate structure (as published by the company), see 15 For a graphical representation of ByteDance’s corporate structure (as published by the company), see
https://www.bytedance.com/en/. https://www.bytedance.com/en/.
16 For more details on the variable interest entity 16 For more details on the variable interest entity (VIE) structure, see CRS In Focus IF11803, structure, see CRS In Focus IF11803, U.S. Capital Markets and
China: Issues for Congress, by Michael D. Sutherland and Karen M. Sutter; U.S. Securities and Exchange , by Michael D. Sutherland and Karen M. Sutter; U.S. Securities and Exchange
Commission, “Investor Bulletin: U.S.-Listed Companies Operating Chinese Businesses Through a VIE Structure,” Commission, “Investor Bulletin: U.S.-Listed Companies Operating Chinese Businesses Through a VIE Structure,”
September 20, 2021. September 20, 2021.
17 17 ~~For more details on the variable interest entity structure, see CRS In Focus IF11803,~~ ~~U.S. Capital Markets and~~
~~China: Issues for Congress, by Michael D. Sutherland and Karen M. Sutter; U.S. Securities and Exchange~~
~~Commission, “Investor Bulletin: U.S.-Listed Companies Operating Chinese Businesses Through a VIE Structure,”~~
~~September 20, 2021.~~
~~18 Zeyi Yang, “How China Takes Extreme Measures to Keep Teens Off TikTok,” MIT Technology Review, March 8,~~
~~2023.~~
Zeyi Yang, “How China Takes Extreme Measures to Keep Teens Off TikTok,” MIT Technology Review, March 8, 2023. 18 Pallaeon Lin, “TikTok vs. Douyin: A Security and Privacy Analysis,” Citizen Lab, March 22, 2021. 19 Beina Xu and Eleanor Albert, “Media Censorship in China,” 19 Beina Xu and Eleanor Albert, “Media Censorship in China,” Council on Foreign Relations~~, February 17, 2017.~~
~~20 Xinhua, “Planned TikTok Deal Entails China’s Approval under Revised Catalogue: Expert,” August 30, 2020; China~~
~~Global Television Network, “MOFCOM: China will firmly oppose a forced sale of TikTok,” March 24, 2023;~~
~~Meaghan Tobin, “China Condemns U.S. Proposal to Force the Sale of TikTok,” New York Times, March 13, 2024.~~
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~~TikTok: Frequently Asked Questions and Issues for Congress~~

, February 17, 2017; CRS In Focus IF12640, TikTok and China’s Digital Platforms: Issues for Congress, by Karen M. Sutter and Michael D. Sutherland. Congressional Research Service 3 TikTok: Frequently Asked Questions and Issues for Congress National Security and Data Privacy Concerns Is ByteDance a People’s Republic of China (PRC) company? ByteDance executives have maintained that because ByteDance is incorporated in the Cayman Islands, it should not be considered a PRC company. However, PRC officials have referred to ByteDance as a PRC company and have cited the company’s obligations to comply with PRC data security and export control regulations as factors that may impede or block a ByteDance divestment from TikTok.20 Some experts contend that the PRC government controls ByteDance, or at least exerts a degree of Some experts contend that the PRC government controls ByteDance, or at least exerts a degree of
influence over ByteDance, through a 2021 investment in Beijing Douyin Information Services influence over ByteDance, through a 2021 investment in Beijing Douyin Information Services
Co., Ltd. (Beijing Douyin) (the entity that owns TikTok’s core technology) by Co., Ltd. (Beijing Douyin) (the entity that owns TikTok’s core technology) by
WangTouZhongWen (Beijing) Technology.21 WangTouZhongWen (Beijing) Technology.21 ~~The company~~WangTouZhongWen financed its stake in financed its stake in ~~ByteDance~~Beijing Douyin with with
funding from the China Internet Investment Fund (CIIF), a PRC government-run investment fund funding from the China Internet Investment Fund (CIIF), a PRC government-run investment fund
capitalized by joint capital contributions from the Cyberspace Administration of China (CAC) capitalized by joint capital contributions from the Cyberspace Administration of China (CAC)
and China’s Ministry of Finance.22 Through this investment, WangTouZhongWen—and the CIIF and China’s Ministry of Finance.22 Through this investment, WangTouZhongWen—and the CIIF
by extension—acquired a 1% stake in Beijing Douyin and a seat on the firm’s board.23 Some by extension—acquired a 1% stake in Beijing Douyin and a seat on the firm’s board.23 Some
experts describe this 1% share as a “golden share,” a reference to the PRC government’s strategy experts describe this 1% share as a “golden share,” a reference to the PRC government’s strategy
of making small, targeted investments that, in the view of these experts, gives the PRC of making small, targeted investments that, in the view of these experts, gives the PRC
government visibility, influence, and control over the decisions and operations of certain strategic government visibility, influence, and control over the decisions and operations of certain strategic
firms in China’s private sector.24 Following this acquisition in December 2021, CAC official Wu firms in China’s private sector.24 Following this acquisition in December 2021, CAC official Wu
Shugang was appointed to Beijing Douyin’s board of directors.25 Shugang was appointed to Beijing Douyin’s board of directors.25
Does the government of the People’s Republic of China (PRC) exercise control
over ByteDance?
The PRC government has tools that it may use to exert control over ByteDance (and potentially The PRC government has tools that it may use to exert control over ByteDance (and potentially
by extension TikTok) and other PRC digital platform developers. These tools may include, for by extension TikTok) and other PRC digital platform developers. These tools may include, for
exampleexample:
• • Communist Party of China (CPC) Party Organizations: Since 1993, the PRC Since 1993, the PRC
government has required companies in China’s private sector that employ three government has required companies in China’s private sector that employ three
or more Party members to establish internal Party organizations. Since becoming or more Party members to establish internal Party organizations. Since becoming
CPC General Secretary in 2013, Xi Jinping has taken action to expand the role CPC General Secretary in 2013, Xi Jinping has taken action to expand the role
~~and influence of Party organizations inside PRC firms,26 including in the~~
~~selection of executives in larger PRC companies.27~~
~~• Official Content Guidelines and Censorship Rules: The PRC government~~
~~maintains a robust online censorship regime that it uses to shape the content~~
~~published to China’s social media platforms. Some observers have cited instances~~
~~of content suppression and promotion that TikTok and ByteDance representatives~~
~~later acknowledged.28~~

20 Xinhua, “Planned TikTok Deal Entails China’s Approval Under Revised Catalogue: Expert,” August 30, 2020; China Global Television Network, “MOFCOM: China Will Firmly Oppose a Forced Sale of TikTok,” March 24, 2023; Meaghan Tobin, “China Condemns U.S. Proposal to Force the Sale of TikTok,” New York Times, March 13, 2024. 21 Keith Zhai, “China Steps Up Direct Involvement in Internet-Content Firms,” 21 Keith Zhai, “China Steps Up Direct Involvement in Internet-Content Firms,” Wall Street Journal, August 17, 2021. , August 17, 2021.
22 Zheping Huang, “Beijing Tightens Grip on ByteDance with Rare China Board Seat,” 22 Zheping Huang, “Beijing Tightens Grip on ByteDance with Rare China Board Seat,” Bloomberg, August 17, 2021. , August 17, 2021.
23 Juro Osawa and Shai Oster, “Beijing Tightens Grip on ByteDance by Quietly Taking Stake, China Board Seat,” 23 Juro Osawa and Shai Oster, “Beijing Tightens Grip on ByteDance by Quietly Taking Stake, China Board Seat,” The
Information, August 16, 2021. , August 16, 2021.
24 Ryan McMorrow, Qianer Liu, and Cheng Leng, “China 24 Ryan McMorrow, Qianer Liu, and Cheng Leng, “China ~~moves to take ‘golden shares~~Moves to Take ‘Golden Shares’ in Alibaba and Tencent ’ in Alibaba and Tencent ~~units~~Units,” ,”
Financial Times, January 12, 2023.January 12, 2023.
25 “Fretting About Data Security, China’s Government Expands Its Use of ‘Golden Shares 25 “Fretting About Data Security, China’s Government Expands Its Use of ‘Golden Shares’,,’” Reuters, December 16, 2021. Congressional Research Service 4 TikTok: Frequently Asked Questions and Issues for Congress and influence of Party organizations inside PRC firms,26 including in the selection of executives in larger PRC companies.27 • Official Content Guidelines and Censorship Rules: The PRC government maintains a robust online censorship regime that it uses to shape the content published to China’s social media platforms. Some observers have cited instances of content suppression and promotion that TikTok and ByteDance representatives later acknowledged.28 ~~” Reuters, December 16,~~
~~2021.~~
~~26 Scott Livingston, “The New Challenge of Communist Corporate Governance,” Center for Strategic and International~~
~~Studies, January 15, 2021.~~
~~27 “Chinese Communist Party Cells in Private Companies: Though Not Yet Universal, Increasingly Situated to Play~~
~~Greater Roles in Corporate Governance,” Sayari, April 7, 2021.~~
~~28 In September 2019, a review of TikTok internal guidelines published by The Guardian revealed that TikTok had~~
~~been suppressing the visibility of (and in some cases removing) content that could be seen as portraying LGBTQ+~~
~~individuals or their lifestyles positively, alongside content that was deemed politically sensitive to Beijing. TikTok later~~
~~stated that it had also been suppressing the visibility of content that portrayed individuals that were overweight or~~
~~displayed conspicuous disabilities, noting that elements of the policy were adopted to comply with broader ByteDance~~
~~(continued...)~~
~~Congressional Research Service~~

4

~~TikTok: Frequently Asked Questions and Issues for Congress~~

• • Data Security, Export Controls, and Cybersecurity Regulations: The PRC The PRC
government has applied existing cybersecurity and data security laws to influence government has applied existing cybersecurity and data security laws to influence
corporate activity in China. PRC officials have indicated that they could apply corporate activity in China. PRC officials have indicated that they could apply
China’s export control laws to block ByteDance from divesting TikTok, stating China’s export control laws to block ByteDance from divesting TikTok, stating
that social media algorithms developed by PRC firms fall under China’s export that social media algorithms developed by PRC firms fall under China’s export
control regulations.29 control regulations.29
What laws and regulations in China could influence ByteDance operations?
Since 2015, the Since 2015, the ~~PRC government and the CPC~~People’s Republic of China (PRC) government and the Communist Party of China (CPC) have adopted interrelated laws, economic have adopted interrelated laws, economic
security measures, and data restrictions that enhance their control over data and security measures, and data restrictions that enhance their control over data and
commercial activity within and outside of China, which could influence ByteDance commercial activity within and outside of China, which could influence ByteDance
operations. They have expanded data localization requirements, placed data under export operations. They have expanded data localization requirements, placed data under export
controls, and, since 2021, required security reviews for PRC firms listing or operating controls, and, since 2021, required security reviews for PRC firms listing or operating
overseas. Some PRC provisions require firms to adhere to PRC requirements even when overseas. Some PRC provisions require firms to adhere to PRC requirements even when
those requirements conflict with U.S. laws. Relevant laws in China include, for examplethose requirements conflict with U.S. laws. Relevant laws in China include, for example:
• • The PRC National Security Law (2015) requires information systems in China requires information systems in China
to be “secure and controllable.” Since 2016, the PRC government has required to be “secure and controllable.” Since 2016, the PRC government has required
U.S. technology firms to store data and cryptographic keys in China.30 U.S. technology firms to store data and cryptographic keys in China.30
~~• The PRC National Cybersecurity Law (2017) requires firms to store personal~~
~~information and data within China, and it underpins requirements to place PRC~~
~~data and related infrastructure in China.31~~
~~• The PRC Data Security Law (2021) covers data processing inside and outside~~
~~of China if it “harms the national security, public interest, or the legitimate rights~~
~~and interests of citizens or organizations of the PRC.” The law requires PRC~~
~~government approval for the transfer of data stored in China and calls for~~
~~classifying data according to its importance to China’s economic development~~
~~and national security interests.32~~
~~• In August 2020, the PRC government added algorithms used in social media~~
~~platforms to China’s~~ ~~Catalogue of Technologies Prohibited and Restricted~~
~~from Export, which is regularly updated according to China’s~~ ~~Export Control~~
~~Law (2020).33 The addition followed the Trump Administration’s announcement~~

26 Scott Livingston, “The New Challenge of Communist Corporate Governance,” Center for Strategic and International Studies, January 15, 2021. 27 “Chinese Communist Party Cells in Private Companies: Though Not Yet Universal, Increasingly Situated to Play Greater Roles in Corporate Governance,” Sayari, April 7, 2021. 28 In September 2019, a review of TikTok internal guidelines published by The Guardian revealed that TikTok had been suppressing the visibility of (and in some cases removing) content that could be seen as portraying LGBTQ+ individuals or their lifestyles positively, alongside content that was deemed politically sensitive to Beijing. TikTok later stated that it had also been suppressing the visibility of content that portrayed individuals that were overweight or displayed conspicuous disabilities, noting that elements of the policy were adopted to comply with broader ByteDance content moderation policies, and that those policies had been replaced with localized content moderation guidelines. In content moderation policies, and that those policies had been replaced with localized content moderation guidelines. In
2020, TikTok released an apology message for a “technical glitch” that made it “temporarily appear as if posts 2020, TikTok released an apology message for a “technical glitch” that made it “temporarily appear as if posts
uploaded using #BlackLivesMatter and #GeorgeFloyd would receive 0 views.uploaded using #BlackLivesMatter and #GeorgeFloyd would receive 0 views.” See Alex Hern, “TikTok’s See Alex Hern, “TikTok’s ~~local~~
~~moderation guidelines ban pro-LGBT content~~Local Moderation Guidelines Ban Pro-LGBT Content,” ,” The Guardian,, September 26, 2019; Umberto Bacchi, “TikTok September 26, 2019; Umberto Bacchi, “TikTok
~~apologises for censoring LGBT+ content~~Apologises for Censoring LGBT+ Content,” Reuters, September 22, 2020; Vanessa Pappas and Kudzi Chikumbu, “A ,” Reuters, September 22, 2020; Vanessa Pappas and Kudzi Chikumbu, “A
~~message to our Black community,” TikTok~~Message to Our Black Community,” TikTok, June 1, 2020. June 1, 2020.
29 Rafaelle Huang, “China Signals Opposition to Forced Sale of TikTok in the U.S.,” 29 Rafaelle Huang, “China Signals Opposition to Forced Sale of TikTok in the U.S.,” Wall Street Journal, March 15, , March 15,
2024. 2024.
30 National Security Law of the People’s Republic of China, July 1, 2015, English translation available at 30 National Security Law of the People’s Republic of China, July 1, 2015, English translation available at
https://www.chinalawtranslate.com/en/2015nsl/#:~:text=Article%201%3A%20This%20Law%20is,of%20the%https://www.chinalawtranslate.com/en/2015nsl/#:~:text=Article%201%3A%20This%20Law%20is,of%20the%~~20refor~~
~~m%20and%20opening.~~
~~31 Cybersecurity Law of the People’s Republic of China, June 1, 2017, English translation available at~~
~~https://digichina.stanford.edu/work/translation-cybersecurity-law-of-the-peoples-republic-of-china-effective-june-1-~~
~~2017/.~~
~~32 Data Security Law of the People’s Republic of China, September 1, 2021, English translation available at~~
~~https://digichina.stanford.edu/work/translation-data-security-law-of-the-peoples-republic-of-china/.~~
~~33 Export Control Law of the People’s Republic of China, October 17, 2020, English translation available at~~
~~https://www.chinalawtranslate.com/en/export-control/.~~
~~Congressional Research Service~~

5

~~TikTok: Frequently Asked Questions and Issues for Congress~~

20reform%20and%20opening. Congressional Research Service 5 TikTok: Frequently Asked Questions and Issues for Congress • The PRC National Cybersecurity Law (2017) requires firms to store personal information and data within China, and it underpins requirements to place PRC data and related infrastructure in China.31 • The PRC Data Security Law (2021) covers data processing inside and outside of China if it “harms the national security, public interest, or the legitimate rights and interests of citizens or organizations of the PRC.” The law requires PRC government approval for the transfer of data stored in China and calls for classifying data according to its importance to China’s economic development and national security interests.32 • In August 2020, the PRC government added algorithms used in social media platforms to China’s Catalogue of Technologies Prohibited and Restricted from Export, which is regularly updated according to China’s Export Control Law (2020).33 The addition followed the Trump Administration’s announcement earlier in August 2020 of executive actions targeting PRC social media earlier in August 2020 of executive actions targeting PRC social media
applications, including TikTok.34 applications, including TikTok.34
Does ByteDance share user data with the government of the People’s Republic
of China (PRC)?
TikTok has denied that it shares data with the PRC government or the TikTok has denied that it shares data with the PRC government or the ~~CPC~~Communist Party of China (CPC). In its responses to . In its responses to
Questions for the Record following TikTok CEO Shou Zi Chew’s testimony in March 2023 Questions for the Record following TikTok CEO Shou Zi Chew’s testimony in March 2023
before the House Energy and Commerce Committee, TikTok provided a response indicating that before the House Energy and Commerce Committee, TikTok provided a response indicating that
the company “has never shared, or received a request to share, U.S. user data with the Chinese the company “has never shared, or received a request to share, U.S. user data with the Chinese
government.”35 In response to Questions for the Record about ByteDance and its adherence to government.”35 In response to Questions for the Record about ByteDance and its adherence to
PRC government policies, TikTok provided a response indicating that “ByteDance’s products PRC government policies, TikTok provided a response indicating that “ByteDance’s products
follow the local laws and regulations of the countries they operate in.”36 Neither TikTok nor follow the local laws and regulations of the countries they operate in.”36 Neither TikTok nor
ByteDance have issued a statement to date on whether ByteDance or any of its subsidiaries in ByteDance have issued a statement to date on whether ByteDance or any of its subsidiaries in
China have received requests to share data from the PRC government. One former ByteDance China have received requests to share data from the PRC government. One former ByteDance
executive reportedly has alleged that ByteDance did share certain user data with the company’s executive reportedly has alleged that ByteDance did share certain user data with the company’s
~~internal CPC committee.37~~
~~Where does TikTok store user data?~~
internal CPC committee.37 31 Cybersecurity Law of the People’s Republic of China, June 1, 2017, English translation available at https://digichina.stanford.edu/work/translation-cybersecurity-law-of-the-peoples-republic-of-china-effective-june-1-2017/. 32 Data Security Law of the People’s Republic of China, September 1, 2021, English translation available at https://digichina.stanford.edu/work/translation-data-security-law-of-the-peoples-republic-of-china/. 33 Export Control Law of the People’s Republic of China, October 17, 2020, English translation available at https://www.chinalawtranslate.com/en/export-control/. 34 “Planned TikTok Deal Entails China’s Approval Under Revised Catalogue: Expert,” Xinhua, August 30, 2020. 35 TikTok, Additional Responses to Questions for the Record, May 4, 2023, p. 13, available at https://docs.house.gov/meetings/IF/IF00/20230323/115519/HHRG-118-IF00-Wstate-ChewS-20230323-SD030.pdf. 36 Ibid. 37 In June 2023, a former ByteDance executive who was engaged in litigation against the company claimed that ByteDance’s internal CPC committee was granted access to data of users based in Hong Kong in 2018. The former executive claimed that this access was to facilitate efforts to pressure ByteDance internally to support the PRC government’s efforts at the time to crack down on Hong Kong’s pro-democracy movement. ByteDance denies the claim. Georgia Wells, “Former ByteDance Executive Claims Chinese Communist Party Accessed TikTok’s Hong Kong User Data,” Wall Street Journal, June 5, 2023. Congressional Research Service 6 link to page 11 link to page 13 link to page 13 TikTok: Frequently Asked Questions and Issues for Congress Where does TikTok store user data? TikTok provided a response to Questions for the Record following CEO Shou Zi Chew’s March TikTok provided a response to Questions for the Record following CEO Shou Zi Chew’s March
2023 testimony before the House Energy and Commerce Committee2023 testimony before the House Energy and Commerce Committee, indicating that at least seven indicating that at least seven
years’ worth of U.S. users’ TikTok data—specifically data related to paid content creators—is years’ worth of U.S. users’ TikTok data—specifically data related to paid content creators—is
stored in data centers located in China.38 As part of its efforts related to Project Texas (an stored in data centers located in China.38 As part of its efforts related to Project Texas (an
initiative started by TikTok that it has claimed would address U.S. government security concerns), initiative started by TikTok that it has claimed would address U.S. government security concerns),
TikTok issued a statement indicating that it is “committed to storing all U.S. user data in the TikTok issued a statement indicating that it is “committed to storing all U.S. user data in the
United States” in cooperation with Oracle and other U.S. firms. (United States” in cooperation with Oracle and other U.S. firms. (~~See~~ See “What is Project Texas?”) )
TikTok also has issued statements claiming that, “as of July 2022, all new U.S. user data is stored TikTok also has issued statements claiming that, “as of July 2022, all new U.S. user data is stored
automatically in Oracle’s U.S. cloud infrastructure, and access is managed exclusively by the automatically in Oracle’s U.S. cloud infrastructure, and access is managed exclusively by the
TikTok US Data Security Team.”39 Some experts contend that whether and where TikTok stores TikTok US Data Security Team.”39 Some experts contend that whether and where TikTok stores
data could potentially be unrelated to the Chinese government’s ability to access TikTok’s data—data could potentially be unrelated to the Chinese government’s ability to access TikTok’s data—
as reported in 2022, there appear to be incidences of ByteDance employees located in China as reported in 2022, there appear to be incidences of ByteDance employees located in China
remotely accessing U.S. TikTok user data from ByteDance offices in Beijing in support of Project remotely accessing U.S. TikTok user data from ByteDance offices in Beijing in support of Project
Texas.40 Texas.40

~~34 “Planned TikTok deal entails China’s approval under revised catalogue: expert,” Xinhua, August 30, 2020.~~
~~35 TikTok, Additional Responses to Questions for the Record¸ May 4, 2023, p. 13, available at~~
~~https://docs.house.gov/meetings/IF/IF00/20230323/115519/HHRG-118-IF00-Wstate-ChewS-20230323-SD030.pdf.~~
~~36 Ibid.~~
~~37 In June 2023, a former ByteDance executive who was engaged in litigation against the company claimed that~~
~~ByteDance’s internal CPC committee was granted access to data of users based in Hong Kong in 2018. The former~~
~~executive claimed that this access was to facilitate efforts to pressure ByteDance internally to support the PRC~~
~~government’s efforts at the time to crack down on Hong Kong’s pro-democracy movement. ByteDance denies the~~
~~claim. Georgia Wells, “Former ByteDance Executive Claims Chinese Communist Party Accessed TikTok’s Hong~~
~~Kong User Data,” Wall Street Journal, June 5, 2023.~~
38 TikTok, Additional Responses to Questions for the Record¸ The U.S.-based company Oracle currently provides cloud infrastructure for TikTok. According to TikTok, “100% of [U.S.] user traffic is being routed to Oracle Cloud Infrastructure” and U.S. and Singapore data centers are used as backup.41 What is Project Texas? Formally announced by TikTok in January 2023, Project Texas is a program currently being implemented by TikTok to address what it claims are the key national security concerns expressed by the U.S. government during the company’s negotiations with the U.S. Department of Justice following the 2019 Committee on Foreign Investment in the United States (CFIUS) investigation (see “What actions followed the 2019 Committee on Foreign Investment in the United States (CFIUS) investigation of the ByteDance acquisition of musical.ly?”).42 The Department of Justice and CFIUS have declined to comment on the U.S. government’s view of Project Texas, citing confidentiality obligations. The core element of Project Texas, according to TikTok, is a localization of all data generated by U.S. users and monitoring of cross-border data flows by a team based in the United States. TikTok plans to do this through the establishment of a new subsidiary, TikTok U.S. Data Security (USDS), based in the United States, which would be monitored by Oracle. USDS would also manage the migration of all TikTok data traffic to Oracle Cloud, and, according to TikTok, would establish a dedicated “transparency center” to allow Oracle employees to inspect TikTok’s source code.43 As of August 2023, media reporting indicates that access to TikTok’s source code is a point of contention between Oracle and TikTok employees, and that TikTok is imposing access 38 TikTok, Additional Responses to Questions for the Record, May 4, 2023, p. 13, available at May 4, 2023, p. 13, available at
https://docs.house.gov/meetings/IF/IF00/20230323/115519/HHRG-118-IF00-Wstate-ChewS-20230323-SD030.pdf. https://docs.house.gov/meetings/IF/IF00/20230323/115519/HHRG-118-IF00-Wstate-ChewS-20230323-SD030.pdf.
39 TikTok, “TikTok Facts: How 39 TikTok, “TikTok Facts: How ~~we secure personal information and store data~~We Secure Personal Information and Store Data,” press release, October 12, 2023. ,” press release, October 12, 2023.
40 Emily Baker-White, “Leaked Audio 40 Emily Baker-White, “Leaked Audio ~~From~~from 80 Internal TikTok Meetings Shows That US User Data Has Been 80 Internal TikTok Meetings Shows That US User Data Has Been
Repeatedly Accessed Repeatedly Accessed ~~From~~from China,” Buzzfeed News, June 17, 2022. 41 Albert Calamug, “Delivering on Our US Data Governance,” TikTok, June 17, 2022, available at https://newsroom.tiktok.com/en-us/delivering-on-our-us-data-governance; TikTok, “The Truth About TikTok: Separating Fact from Fiction,” press release, April 17, 2023. 42 Matt Perault and Samm Sacks, “Project Texas: The Details of TikTok’s Plan to Remain Operational in the United States,” January 26, 2023. 43 TikTok, “When Will Project Texas Be Fully Operational?” press release, March 23, 2023. ~~China,” Buzzfeed News, June 17, 2022.~~
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link to page 9 TikTok: Frequently Asked Questions and Issues for Congress

~~The U.S.-based company Oracle currently provides cloud infrastructure for TikTok. According to~~
~~TikTok, “100% of [U.S.] user traffic is being routed to Oracle Cloud Infrastructure” and U.S. and~~
~~Singapore data centers are used as backup.41~~
~~How does TikTok moderate content and recommend content?~~
restrictions and surveillance requirements on Oracle employees that impedes their ability to implement Project Texas.44 Several experts and Members of Congress contend that even if Project Texas were to be fully implemented, it would not address the core problem of ByteDance employee access to U.S. user data, which some experts argue could be maintained despite a localization of data in the United States depending on how ByteDance and TikTok structure internal data security protocols and access permissions.45 How does TikTok moderate content and recommend content? TikTok has maintained that its content moderation policies and recommendation algorithms TikTok has maintained that its content moderation policies and recommendation algorithms
operate independently of ByteDance and its other products, and that TikTok tailors these policies operate independently of ByteDance and its other products, and that TikTok tailors these policies
and recommendation algorithms to be compliant with the laws of each country where it operates and recommendation algorithms to be compliant with the laws of each country where it operates
and also to promote content specific to each country where it operates.and also to promote content specific to each country where it operates.4246 In its responses to In its responses to
Questions for the Record following TikTok CEO Shou Zi Chew’s March 2023 testimony before Questions for the Record following TikTok CEO Shou Zi Chew’s March 2023 testimony before
the House Energy and Commerce Committee, TikTok indicated that it promotes certain content the House Energy and Commerce Committee, TikTok indicated that it promotes certain content
but claimed that it does not do so at the request of any government.but claimed that it does not do so at the request of any government.4347 Some observers have cited Some observers have cited
instances of content suppression and promotion that TikTok and ByteDance representatives later instances of content suppression and promotion that TikTok and ByteDance representatives later
acknowledged.acknowledged.4448
Efforts to Regulate TikTok
What actions has the executive branch taken to address alleged national
security risks TikTok poses?
With regard to ByteDance and TikTok, the executive branch has sought to address identified With regard to ByteDance and TikTok, the executive branch has sought to address identified
national security concerns related to the firms’ presence and operations in the United States using national security concerns related to the firms’ presence and operations in the United States using
two separate authorities and legal frameworks: (1) the Committee on Foreign Investment in the two separate authorities and legal frameworks: (1) the Committee on Foreign Investment in the
United States United States ~~(CFIUS),~~ and (2) the International Emergency Economic Powers Actand (2) the International Emergency Economic Powers Act ~~(IEEPA).~~
. These two actions are discussed in the questions that immediately follow. These two actions are discussed in the questions that immediately follow.
What are the details of the Committee on Foreign Investment in the United
States (CFIUS) investigation of the ByteDance acquisition of musical.ly?
In 2019, CFIUS conducted a retroactive national security review and investigation of In 2019, CFIUS conducted a retroactive national security review and investigation of ~~the~~
ByteDanceByteDance’s completed acquisition of musical.ly, which had originally not been submitted by the completed acquisition of musical.ly, which had originally not been submitted by the
parties for CFIUS review.parties for CFIUS review.4549 Following its investigation, CFIUS referred the transaction to 44 Emily Baker-White, “As TikTok Ban Looms, ByteDance Battles Oracle for Control of Its Algorithm,” Forbes, August 24, 2023; Anissa Gardizy, “TikTok Says U.S. Survival Plan Is Going Forward. Its Cloud Provider Isn’t So Sure,” The Information, May 22, 2023. 45 Matt Perault, “What Happened to TikTok’s Project Texas?” Lawfare, March 20, 2024. 46 ~~Following its investigation, CFIUS referred the transaction to~~
~~President Trump for a presidential decision. The presidential decision, issued in March 2020,~~
~~concluded that the acquisition threatened U.S. national security.46 In referring the case to the~~
~~President, CFIUS signaled it could not mitigate the identified national security risks arising from~~

~~41 Albert Calamug, “Delivering on our US data governance,” TikTok, June 17, 2022, available at~~
~~ttps://newsroom.tiktok.comen-us/delivering-on-our-us-data-governance; TikTok, “The Truth About TikTok: Separating~~
~~Fact from Fiction,” press release, April 17, 2023.~~
42 TikTok, “The Truth About TikTok: Separating Fact from Fiction,” press release, April 17, 2023. TikTok, “The Truth About TikTok: Separating Fact from Fiction,” press release, April 17, 2023.
4347 TikTok, TikTok, Additional Responses to Questions for the Record¸, May 4, 2023. May 4, 2023.
~~44 See footnote 28.~~
4548 See supra footnote 28. 49 The Committee on Foreign Investment in the United States (CFIUS) is an interagency committee chaired by the The Committee on Foreign Investment in the United States (CFIUS) is an interagency committee chaired by the
Secretary of the Treasury. It serves the President in overseeing the national security risks of certain foreign direct Secretary of the Treasury. It serves the President in overseeing the national security risks of certain foreign direct
~~investment (FDI) in the U.S. economy. For more details, see CRS In Focus IF11334,~~ ~~CFIUS: New Foreign Investment~~
~~Review Regulations, by Cathleen D. Cimino-Isaacs.~~
~~46 White House Office of the Press Secretary, “Regarding the Acquisition of Musical.ly by ByteDance, Ltd.,” August~~
~~14, 2020, https://home.treasury.gov/system/files/136/EO-on-TikTok-8-14-20.pdf.~~
~~Congressional Research Service~~

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~~TikTok: Frequently Asked Questions and Issues for Congress~~

(continued...) Congressional Research Service 8 TikTok: Frequently Asked Questions and Issues for Congress President Trump for a presidential decision. The presidential decision, issued in March 2020, concluded that the acquisition threatened U.S. national security.50 In referring the case to the President, CFIUS signaled it could not mitigate the identified national security risks arising from the transaction. CFIUS does not publicly comment on investigations or mitigation negotiations, the transaction. CFIUS does not publicly comment on investigations or mitigation negotiations,
including with respect to TikTok. including with respect to TikTok.
What actions followed the 2019 Committee on Foreign Investment in the
United States (CFIUS) investigation of the ByteDance acquisition of
musical.ly?
In August 2020, President Trump concluded that the ByteDance acquisition of musical.ly In August 2020, President Trump concluded that the ByteDance acquisition of musical.ly
threatened U.S. national security and issued a Presidential Order under CFIUS’s authorities threatened U.S. national security and issued a Presidential Order under CFIUS’s authorities
directing ByteDance to divest (1) any asset or property used to enable or support the operation of directing ByteDance to divest (1) any asset or property used to enable or support the operation of
TikTok in the United States and (2) data obtained or derived from TikTok or musical.ly app users TikTok in the United States and (2) data obtained or derived from TikTok or musical.ly app users
in the United States.in the United States.4751 In a statement issued following the order, then-Treasury Secretary Steven In a statement issued following the order, then-Treasury Secretary Steven
Mnuchin said that “CFIUS conducted an exhaustive review of the case and unanimously Mnuchin said that “CFIUS conducted an exhaustive review of the case and unanimously
recommended this action to the President in order to protect U.S. users from exploitation of their recommended this action to the President in order to protect U.S. users from exploitation of their
personal data.”personal data.”4852
In November 2020, ByteDance and TikTok contested the order through a legal challenge, In November 2020, ByteDance and TikTok contested the order through a legal challenge,
arguing, among other things, that the order was an unconstitutional taking of their private arguing, among other things, that the order was an unconstitutional taking of their private
property without just compensation and that it violated their due process rights under the Fifth property without just compensation and that it violated their due process rights under the Fifth
Amendment.Amendment.4953 The case is currently held in abeyance at the request of both parties. The court The case is currently held in abeyance at the request of both parties. The court
directed the government to file status reports every 60 days, and the government has reported as directed the government to file status reports every 60 days, and the government has reported as
directed. According to the February 2024 report, the parties continue to negotiate whether the directed. According to the February 2024 report, the parties continue to negotiate whether the
litigation can be resolved by mutual agreement.litigation can be resolved by mutual agreement.5054
What actions did the U.S. government take under International Emergency
Economic Powers Act (IEEPA) authorities?
~~IEEPA51~~IEEPA gives the President broad authority to block a variety of economic transactions following gives the President broad authority to block a variety of economic transactions following
the declaration of a national emergency.the declaration of a national emergency.5255 Based on the national emergency declared in Based on the national emergency declared in Executive Order (E.O.) ~~E.O.~~
13873 in May 2019, in August 2020 President Trump issued E.O. 13942, which 13873 in May 2019, in August 2020 President Trump issued E.O. 13942, which ~~exercised~~
~~authority provided by IEEPA to restrict TikTok’s U.S. operations.53 The then-Secretary of~~
~~Commerce subsequently implemented this order by issuing a list of prohibited transactions,~~
~~including maintaining TikTok on a mobile app store or providing internet hosting services to it.54~~

47 investment (FDI) in the U.S. economy. For more details, see CRS In Focus IF10177, The Committee on Foreign Investment in the United States, by Cathleen D. Cimino-Isaacs and Karen M. Sutter. 50 White House Office of the Press Secretary, “Regarding the Acquisition of Musical.ly by ByteDance, Ltd.,” August 14, 2020, available at https://home.treasury.gov/system/files/136/EO-on-TikTok-8-14-20.pdf. 51 Executive Office of the President, “Regarding the Acquisition of Musical.ly by ByteDance Ltd.,” 85 Executive Office of the President, “Regarding the Acquisition of Musical.ly by ByteDance Ltd.,” 85 FRFederal Register 51297, 51297,
August 14, 2020. August 14, 2020.
4852 U.S. Department of the Treasury, “Statement by Secretary Steven T. Mnuchin on the President’s Decision Regarding U.S. Department of the Treasury, “Statement by Secretary Steven T. Mnuchin on the President’s Decision Regarding
the Acquisition by ByteDance Ltd. of the U.S. Business of musical.ly,” August 14, 2020. the Acquisition by ByteDance Ltd. of the U.S. Business of musical.ly,” August 14, 2020.
4953 Petition for Review, TikTok v. CFIUS, No. 20-1444 (D.C. Cir. Nov. 10, 2020). Petition for Review, TikTok v. CFIUS, No. 20-1444 (D.C. Cir. Nov. 10, 2020).
5054 Status Report, TikTok v. CFIUS, No. 20-1444 (D.C. Cir. Feb. 20, 2024). Status Report, TikTok v. CFIUS, No. 20-1444 (D.C. Cir. Feb. 20, 2024).
5155 P.L. 95-223, 91 Stat. 1626 (1977) (codified as amended at 50 U.S.C. §§1701 P.L. 95-223, 91 Stat. 1626 (1977) (codified as amended at 50 U.S.C. §§1701–-1708)1708).
52; see 50 U.S.C. § 50 U.S.C. § ~~702(a~~1702(a) (granting the President authority to prohibit certain transactions). For further background on the President’s powers under IEEPA, see CRS Report R45618, ). For further background on the President’s powers under IEEPA, see CRS Report R45618, The
International Emergency Economic Powers Act: Origins, Evolution, and Use, coordinated by Christopher A. Casey. Congressional Research Service 9 link to page 14 link to page 14 TikTok: Frequently Asked Questions and Issues for Congress exercised authority provided by IEEPA to restrict TikTok’s U.S. operations.56 The then-Secretary of Commerce subsequently implemented this order by issuing a list of prohibited transactions, including maintaining TikTok on a mobile app store or providing internet hosting services to it.57 ~~Use, coordinated by Christopher A. Casey.~~
~~53 Executive Order 13942, “Addressing the Threat Posed by TikTok, and Taking Additional Steps to Address the~~
~~National Emergency With Respect to the Information and Communications Technology and Services Supply Chain,”~~
~~85 Federal Register 48637, August 11, 2020.~~
~~54 Department of Commerce, “Identification of Prohibited Transactions to Implement Executive Order 13942 and~~
~~Address the Threat Posed by TikTok and the National Emergency With Respect to the Information and~~
~~Communications Technology and Services Supply Chain,” 85 Federal Register 60061, September 24, 2020.~~
~~Congressional Research Service~~

8

~~link to page 13 link to page 13~~ ~~TikTok: Frequently Asked Questions and Issues for Congress~~

Have the actions the U.S. government took under International Emergency
Economic Powers Act (IEEPA) authorities been challenged in court?
Two lawsuits were filed challenging E.O. 13942: one brought by TikTok and its parent company Two lawsuits were filed challenging E.O. 13942: one brought by TikTok and its parent company
ByteDance,ByteDance,5558 and the other brought by a group of TikTok users. and the other brought by a group of TikTok users.5659 The plaintiffs in these suits The plaintiffs in these suits
argued, among other things, that the President exceeded his authority under IEEPA by regulating argued, among other things, that the President exceeded his authority under IEEPA by regulating
conduct that they contended falls under two statutory exceptions.conduct that they contended falls under two statutory exceptions.5760 First, under the personal First, under the personal
communication exception, the President may not rely on IEEPA to regulate or prohibit any communication exception, the President may not rely on IEEPA to regulate or prohibit any
“personal communication, which does not involve a transfer of anything of value.”“personal communication, which does not involve a transfer of anything of value.” 5861 Second, Second,
under the informational materials exception, the President may not rely on IEEPA to regulate or under the informational materials exception, the President may not rely on IEEPA to regulate or
prohibit the importation or exportation of most “informational materials.”prohibit the importation or exportation of most “informational materials.”5962 The plaintiffs argued The plaintiffs argued
that TikTok’s core function—creating and sharing short-form videos—involved transmitting that TikTok’s core function—creating and sharing short-form videos—involved transmitting
personal communications and informational materials, albeit in a modern format.personal communications and informational materials, albeit in a modern format.6063
In both suits, the courts issued preliminary injunctions temporarily barring the United States from In both suits, the courts issued preliminary injunctions temporarily barring the United States from
enforcing the restrictions.enforcing the restrictions.6164 In June 2021, before the injunctions expired, the Biden In June 2021, before the injunctions expired, the Biden
Administration rescinded E.O. 13942 and replaced it with a broader E.O. 14034.Administration rescinded E.O. 13942 and replaced it with a broader E.O. 14034. E.O. 14034E.O. 14034
directs the Secretary of Commerce to create a program to identify and address the potential directs the Secretary of Commerce to create a program to identify and address the potential
national security risks arising from foreign internet-based and software-tied operations in the national security risks arising from foreign internet-based and software-tied operations in the
United States. These could include apps that are operated by entities owned by, controlled by, or United States. These could include apps that are operated by entities owned by, controlled by, or
subject to the jurisdiction of the subject to the jurisdiction of the ~~PRC~~People’s Republic of China (PRC) or other countries the Secretary of Commerce has or other countries the Secretary of Commerce has
designated as “foreign adversaries.”designated as “foreign adversaries.”62
~~What legislation has Congress introduced to regulate TikTok?~~
~~In 2022, Congress enacted a law directing the Office of Management and Budget (OMB) to~~
~~develop standards and guidelines that require executive agencies to remove TikTok from~~
~~government computers and other government information technology.63 On February 27, 2023,~~
~~OMB issued implementation guidance, which included instructions and deadlines for removing~~
~~TikTok from federal devices.64~~

5565 56 Executive Order 13942, “Addressing the Threat Posed by TikTok, and Taking Additional Steps to Address the National Emergency with Respect to the Information and Communications Technology and Services Supply Chain,” 85 Federal Register 48637, August 11, 2020. 57 Department of Commerce, “Identification of Prohibited Transactions to Implement Executive Order 13942 and Address the Threat Posed by TikTok and the National Emergency with Respect to the Information and Communications Technology and Services Supply Chain,” 85 Federal Register 60061, September 24, 2020. 58 Complaint, TikTok v. Trump, 1:20-cv-02658 (D.D.C. Sept. 18, 2020) [hereinafter TikTok Complaint]. Complaint, TikTok v. Trump, 1:20-cv-02658 (D.D.C. Sept. 18, 2020) [hereinafter TikTok Complaint].
5659 Amended Complaint, Marland v. Trump, 2:20-cv-04597 (E.D. Pa. Oct. 1, 2020) [hereinafter TikTok Users Amended Complaint, Marland v. Trump, 2:20-cv-04597 (E.D. Pa. Oct. 1, 2020) [hereinafter TikTok Users
Complaint]. Complaint].
5760 See TikTok Complaint, See TikTok Complaint, supra ~~footnote 55~~footnote 58, at ¶¶ 75 at ¶¶ 75–-81; TikTok Users Complaint, 81; TikTok Users Complaint, supra ~~footnote 56~~footnote 59, at ¶¶ 73at ¶¶ 73–-79. 79.
5861 50 U.S.C. §1702(b)(1). 50 U.S.C. §1702(b)(1).
5962 Ibid. §1702(b)(2). Ibid. §1702(b)(2).
6063 See Memorandum In Support of Plaintiff’s Motion for Preliminary Injunction, TikTok v. Trump, 1:20-cv-02658, at See Memorandum In Support of Plaintiff’s Motion for Preliminary Injunction, TikTok v. Trump, 1:20-cv-02658, at
1818~~–20 (Sept.~~-20 (September 23, 2020); Memorandum of Law In Support of Plaintiffs’ Motion for Preliminary Injunction, Marland v. 23, 2020); Memorandum of Law In Support of Plaintiffs’ Motion for Preliminary Injunction, Marland v.
Trump, 2:20-cv- 04597, at 21Trump, 2:20-cv- 04597, at 21–-22 (22 (~~Oct.~~October 13, 2020). 13, 2020).
6164 In the case brought by TikTok and ByteDance, the court concluded that the plaintiffs were likely to prevail on the In the case brought by TikTok and ByteDance, the court concluded that the plaintiffs were likely to prevail on the
argument that the ban ran afoul of both relevant exceptions. TikTok v. Trump, 507 F. Supp. 3d 92, 107argument that the ban ran afoul of both relevant exceptions. TikTok v. Trump, 507 F. Supp. 3d 92, 107~~–09~~-109, 112 , 112
(D.D.C. 2020). In the TikTok users’ case, the court limited its decision to the informational materials exception. (D.D.C. 2020). In the TikTok users’ case, the court limited its decision to the informational materials exception.
Marland v. Trump, 498 F. Supp. 3d 624, 636Marland v. Trump, 498 F. Supp. 3d 624, 636~~–41~~-641 (E.D. Pa. 2020). (E.D. Pa. 2020).
6265 Executive Order 14034, “Protecting Americans’ Sensitive Data Executive Order 14034, “Protecting Americans’ Sensitive Data ~~From~~from Foreign Adversaries,” 86 Foreign Adversaries,” 86 Federal Register
31423, June 9, 202131423, June 9, 2021.
~~63 Consolidated Appropriations Act, 2023, P.L. 117-328 , div. R, 136 Stat. 4459, 5258 (Dec. 29, 2022); see also 40~~
~~U.S.C. §11101(6) (defining “information technology”).~~
~~64 OMB, memorandum from Shalanda D. Young, Director of OMB, “‘No TikTok on Government Devices’~~
~~Implementation Guidance,” M-23-13, February 27, 2023.~~
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9. Congressional Research Service 10

link to page link to page 1213 link to page link to page 1213 link to page link to page 1314 link to page link to page 1213 link to page link to page 1213 TikTok: Frequently Asked Questions and Issues for Congress

~~Members of Congress have also introduced a number of bills that would regulate TikTok. Some~~
~~bills would limit the application of the IEEPA exceptions when the President invokes IEEPA to~~
~~regulate TikTok.65 For example, the No TikTok on United States Devices Act would direct the~~
~~President to exercise his authority under IEEPA to prohibit transactions involving ByteDance’s~~
~~property and would provide that the exceptions to IEEPA—which courts relied on to preliminary~~
~~enjoin an earlier exercise of IEEPA authority to regulate TikTok66—would not apply to the~~
~~exercise of the President’s authority pursuant to the bill.67~~
~~Other legislative proposals would create new administrative authorities that could be used to~~
~~regulate TikTok. An example is the SAFETY on Social Media Act of 2023.68 That bill would~~
~~direct the President to publish a list of “untrustworthy applications and social media entities”69~~
~~and would direct the Federal Communications Commission to issue rules that prohibit app stores~~
~~and internet service providers from supporting the listed applications.70 Proposals to expand data~~
~~privacy frameworks or to create new restrictions on cross-border transfers of data could also~~
~~regulate TikTok’s— as well as other entities’—collection, use, and transfer of data.71~~
~~On March 13, 2024, the House passed the Protecting Americans from Foreign Adversary~~
~~Controlled Applications Act (H.R. 7521), which expressly names TikTok as a “foreign adversary~~
~~controlled application” subject to its provisions. 72 H.R. 7521 would prohibit app stores and~~
~~internet hosting services from supporting TikTok and other foreign adversary controlled~~
~~applications in the United States unless their owners execute a “qualified divestiture.”73~~
~~What are the main elements of H.R. 7521, the Protecting Americans from~~
~~Foreign Adversary Controlled Applications Act?~~
~~H.R. 7521, as passed by the House, would regulate “foreign adversary controlled applications”~~
~~and the app stores and internet hosting services through which users access the applications.74 The~~
~~bill’s definition of foreign adversary controlled application includes two categories of~~
~~applications. First, applications operated by TikTok, ByteDance, or a subsidiary or successor of~~
~~either company that is controlled by a foreign adversary qualify as foreign adversary controlled~~
~~applications.75 In addition to TikTok and applications operated by TikTok’s parent company,~~
~~ByteDance, this definition would capture applications operated by Beijing Douyin Information~~
~~Services Co., Ltd., ByteDance’s core operating subsidiary in China in which the Chinese~~

65What legislation has Congress introduced or enacted to regulate TikTok? In 2022, Congress enacted a law directing the Office of Management and Budget (OMB) to develop standards and guidelines that require executive agencies to remove TikTok from government computers and other government information technology.66 On February 27, 2023, OMB issued implementation guidance, which included instructions and deadlines for removing TikTok from federal devices.67 In April 2024, Congress enacted the Protecting Americans from Foreign Adversary Controlled Applications Act (P.L. 118-50),68 which expressly names TikTok as a “foreign adversary controlled application” subject to its provisions.69 The act defines foreign adversary controlled application to include two categories, the first of which is applications operated by TikTok, ByteDance, or a subsidiary or successor of either company that is controlled by a foreign adversary.70 The Protecting Americans from Foreign Adversary Controlled Applications Act prohibits app stores and internet hosting services from supporting TikTok and other foreign adversary controlled applications in the United States unless their owners execute a “qualified divestiture” within a specified time frame.71 Prior to the passage of the Protecting Americans from Foreign Adversary Controlled Applications Act, Members of Congress introduced a number of other bills in the 118th Congress that would also regulate TikTok. Some of these bills proposed broader changes or different restrictions than those enacted in the Protecting Americans from Foreign Adversary Controlled Applications Act. Some bills would limit the application of the IEEPA exceptions when the President invokes IEEPA to regulate TikTok.72 For example, the No TikTok on United States Devices Act would direct the President to exercise his authority under IEEPA to prohibit transactions involving ByteDance’s property and would provide that the exceptions to IEEPA—which courts relied on to preliminary enjoin an earlier exercise of IEEPA authority to regulate TikTok73—would not apply to the exercise of the President’s authority pursuant to the bill.74 Other legislative proposals would create new administrative authorities that could be used to regulate TikTok. An example is the SAFETY on Social Media Act of 2023.75 That bill would direct the President to publish a list of “untrustworthy applications and social media entities”76 66 Consolidated Appropriations Act, 2023, P.L. 117-328, Div. R, 136 Stat. 4459, 5258 (December 29, 2022); see also 40 U.S.C. §11101(6) (defining “information technology”). 67 OMB, memorandum from Shalanda D. Young, Director of OMB, “‘No TikTok on Government Devices’ Implementation Guidance,” M-23-13, February 27, 2023. 68 Protecting Americans from Foreign Adversary Controlled Applications Act (P.L. 118-50, Div. H) (hereinafter PAFACAA). 69 PAFACAA §2(g)(3)(A). 70 PAFACAA §2(g)(3). 71 PAFACAA §2(a). 72 Courts have cited IEEPA’s exceptions when enjoining executive orders that were issued under IEEPA and that Courts have cited IEEPA’s exceptions when enjoining executive orders that were issued under IEEPA and that
would have applied to TikTok. See would have applied to TikTok. See supra “What actions did the U.S. government take under International
Emergency Economic Powers Act (IEEPA) authorities?”
6673 See See supra ~~footnote 61~~footnote 64, and and ““What actions did the U.S. government take under International Emergency
Economic Powers Act (IEEPA) authorities?”
6774 H.R. 503, 118th Cong. (2023); S. 85, 118th Cong. (2023). H.R. 503, 118th Cong. (2023); S. 85, 118th Cong. (2023).
6875 S. 872, 118th Cong. (2023). S. 872, 118th Cong. (2023).
6976 Section 3 of S. 872. Congressional Research Service 11 TikTok: Frequently Asked Questions and Issues for Congress and would direct the Federal Communications Commission to issue rules that prohibit app stores and internet service providers from supporting the listed applications.77 Proposals to expand data privacy frameworks or to create new restrictions on cross-border transfers of data could also regulate TikTok’s—as well as other entities’—collection, use, and transfer of data.78 What are the main elements of the Protecting Americans from Foreign Adversary Controlled Applications Act? The Protecting Americans from Foreign Adversary Controlled Applications Act (P.L. 118-50) regulates “foreign adversary controlled applications” and the app stores and internet hosting services through which users access the applications.79 The act’s definition of foreign adversary controlled application includes two categories of applications. First, applications operated by TikTok, ByteDance, or a subsidiary or successor of either company that is controlled by a foreign adversary qualify as foreign adversary controlled applications.80 In addition to TikTok and applications operated by TikTok’s parent company, ByteDance, this definition captures applications operated by Beijing Douyin Information Services Co., Ltd., ByteDance’s core operating subsidiary in China in which the Chinese ~~Section 3 of S. 872.~~
~~70 Section 5 of S. 872.~~
~~71 See, for example, H.R. 7520, 118th Cong. (2024); S. 1974, 118th Cong. (2023).~~
~~72 H.R. 7521, 118th Cong. (2024). The Protecting Americans’ Data from Foreign Adversaries Act of 2024 (H.R. 7520)~~
~~also passed the House in March 2024 but does not expressly name TikTok.~~
~~73 Section 2(g)(3) of H.R. 7521. For more information about legislative proposals to regulate TikTok, see CRS Legal~~
~~Sidebar LSB10942, Restricting TikTok (Part II): Legislative Proposals and Considerations for Congress, coordinated~~
~~by Peter J. Benson.~~
~~74 Section 2 of H.R. 7521.~~
~~75 Section 2(g)(3) of H.R. 7521.~~
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10

~~TikTok: Frequently Asked Questions and Issues for Congress~~

government holds an equity stake. Second, the President may designate an application as a government holds an equity stake. Second, the President may designate an application as a
foreign adversary controlled application if foreign adversary controlled application if
~~(1)~~1. the application allows users to share and view text, images, videos, or similar the application allows users to share and view text, images, videos, or similar content; has content; has
more than 1,000,000 more than 1,000,000 ~~monthly active users~~MAUs; and meets related definitional requirements;; and meets related definitional requirements;7681
~~(2)~~2. the application is operated by a person domiciled in, headquartered in, the application is operated by a person domiciled in, headquartered in, maintaining a maintaining a
principal place of business in, or organized under the laws of a “foreign adversary principal place of business in, or organized under the laws of a “foreign adversary
country,” defined to include the countries listed in 10 U.S.C. §4872(d)(2), or country,” defined to include the countries listed in 10 U.S.C. §4872(d)(2), or the application is operated is operated
by a company for which persons owning at least a 20% stake are domiciled in, by a company for which persons owning at least a 20% stake are domiciled in,
are headquartered in, headquartered in, ~~maintaining a~~ maintain a principal place of business in, or principal place of business in, or are organized under the organized under the
laws of a foreign adversary country;laws of a foreign adversary country;7782 and and
~~(3)~~3. the President determines that the application presents a significant national the President determines that the application presents a significant national ~~security~~
security threat.threat.78
~~Beginning 180 days after an application is designated as a foreign adversary controlled~~
~~application,79 H.R. 7521 would prohibit app~~ 83 The Protecting Americans from Foreign Adversary Controlled Applications Act prohibits app stores and internet hosting services from enabling the stores and internet hosting services from enabling the
~~distribution, maintenance, or updating of the application for U.S. users.80~~
~~Before the ban on app stores and internet hosting services supporting the application takes effect,~~
~~the owner of a foreign adversary controlled application would be required to provide U.S. users,~~
~~upon request, with all data related to their accounts, including posts, photos, and videos, in a~~
~~machine readable format.81~~
~~App stores and internet hosting services would not be prohibited from enabling the distribution,~~
~~maintenance, or updating of TikTok or another~~distribution, maintenance, or updating of a foreign adversary controlled application for U.S. users if the application’s owners do not execute a qualified divestiture within 270 days of the application being designated a foreign adversary controlled application foreign adversary controlled application ~~if the~~
~~application’s owners execute a “qualified divestiture.”82 H.R. 7521~~. The act defines defines qualified divestiture as as
a divestiture or similar transaction for which the President, through an interagency process, has a divestiture or similar transaction for which the President, through an interagency process, has
determined that the application will no longer be controlled by a foreign adversary and will no determined that the application will no longer be controlled by a foreign adversary and will no
~~longer have any operational relationship with entities controlled by a foreign adversary.83~~
~~A qualified divestiture that is completed within 180 days of an application being designated a~~
~~foreign adversary controlled application would allow app stores and internet hosting services to~~
~~continue distributing, maintaining, and updating the application without interruption.84 Regardless~~
~~of when a qualified divestiture takes place, H.R. 7521’s restrictions would cease to apply once a~~
~~qualified divestiture had been completed.85~~

76longer have any operational 77 Section 5 of S. 872. 78 See, for example, H.R. 7520, 118th Cong. (2024); S. 1974, 118th Cong. (2023). For more information about legislative proposals to regulate TikTok, see CRS Legal Sidebar LSB10942, Restricting TikTok (Part II): Legislative Proposals and Considerations for Congress, coordinated by Peter J. Benson. 79 PAFACAA §2. 80 PAFACAA §2(g)(3). 81 If the “primary purpose” of an application “is to allow users to post product reviews, business reviews, or travel If the “primary purpose” of an application “is to allow users to post product reviews, business reviews, or travel
information and reviews,” it does not meet the definitional requirements. information and reviews,” it does not meet the definitional requirements. ~~Section~~ PAFACAA §2(g)(2)(B). 82 PAFACAA §2(g)(1). 83 PAFACAA §2(g)(3)(B). Congressional Research Service 12 TikTok: Frequently Asked Questions and Issues for Congress relationship with entities controlled by a foreign adversary.84 The President can provide a one-time extension of the divestiture deadline of up to 90 days when a path to a qualified divestiture has been identified, there is evidence of “significant” progress toward executing the divestiture, and there are legally binding agreements in place to enable the divestiture.85 For applications operated by TikTok or other subsidiaries of ByteDance, the 270-day period runs from the date of the act’s enactment.86 If the President determines that another application qualifies as a foreign adversary controlled application, the period runs from the applicable presidential determination.87 If a qualified divestiture is executed within this 270-day—or, if extended, up to 360-day—time period, app stores and internet hosting services would be permitted to continue distributing, maintaining, and updating the application at issue without interruption.88 Regardless of when a qualified divestiture takes place, the act’s restrictions cease to apply once a qualified divestiture has been completed.89 Before the ban on app stores and internet hosting services supporting the application takes effect, the owner of a foreign adversary controlled application is required to provide U.S. users, upon request, with all data related to their accounts, including posts, photos, and videos, in a machine readable format.90 Who can be penalized under the Protecting Americans from Foreign Adversary Controlled Applications Act, and what penalties can be imposed? The Protecting Americans from Foreign Adversary Controlled Applications Act provides for civil penalties in two circumstances.91 First, an entity that violates the act~~2(g)(2)(B) of H.R. 7521.~~
~~77 Section 2(g)(1) of H.R. 7521.~~
~~78 Section 2(g)(3)(B) of H.R. 7521.~~
~~79 For TikTok, this time period would run 180 days from the date H.R. 7521 was enacted. Section 2(a)(2)(A) of H.R.~~
~~7521. For an application designated as a foreign adversary controlled application by the President, the 180 days would~~
~~run from the date of the President’s determination. Section 2(a)(2)(B) of H.R. 7521.~~
~~80 Section 2(a) of H.R. 7521.~~
~~81 Section 2(b) of H.R. 7521.~~
~~82 Section 2(c) of H.R. 7521.~~
~~83 Section 2(g)(6) of H.R. 7521.~~
~~84 Section 2(c)(1)(A) of H.R. 7521.~~
~~85 Section 2(c)(1)(B) of H.R. 7521. For more information about H.R. 7521, see CRS Legal Sidebar LSB10942,~~
Restricting TikTok (Part II): Legislative Proposals and Considerations for Congress, coordinated by Peter J. Benson;
~~and CRS Legal Sidebar LSB11127, H.R. 7521 Regulation of TikTok: Analysis of Selected Legal Issues, by Peter J.~~
~~Benson, Valerie C. Brannon, and Joanna R. Lampe.~~
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~~TikTok: Frequently Asked Questions and Issues for Congress~~

~~Who could be penalized under H.R. 7521 and what penalties could be~~
~~imposed?~~
~~H.R. 7521, as passed by the House, would provide for civil penalties in two circumstances.86~~
~~First, if H.R. 7521 were enacted, an entity that violated the enacted law~~ by providing a by providing a
marketplace or internet hosting service that marketplace or internet hosting service that ~~enabled~~enables distribution, maintenance, or updates of a distribution, maintenance, or updates of a
foreign adversary controlled application could be subject to civil penalties of up to $5,000 foreign adversary controlled application could be subject to civil penalties of up to $5,000
multiplied by the number of U.S. users who accessed, maintained, or updated the application.multiplied by the number of U.S. users who accessed, maintained, or updated the application. 87
~~Second, if the bill were enacted~~92 Second, an entity that , an entity that ~~owned or controlled~~owns or controls a foreign adversary controlled a foreign adversary controlled
application and application and ~~violated H.R. 7521~~violates the act by failing to provide machine readable user data in response by failing to provide machine readable user data in response
to requests from U.S. users could be subject to civil penalties of up to $500 multiplied by the to requests from U.S. users could be subject to civil penalties of up to $500 multiplied by the
number of affected users.number of affected users.88
~~Would H.R. 7521~~93 84 PAFACAA §2(g)(6). 85 PAFACAA §2(a)(3). 86 PAFACAA §2(a)(2)(A). 87 PAFACAA §2(a)(2)(B). 88 PAFACAA §2(c)(1)(A). 89 PAFACAA §2(c)(1)(B). 90 PAFACAA §2(b). For more information about some of the provisions included in PAFACAA, see CRS Legal Sidebar LSB10942, Restricting TikTok (Part II): Legislative Proposals and Considerations for Congress, coordinated by Peter J. Benson; and CRS Legal Sidebar LSB11127, Regulation of TikTok Under the Protecting Americans from Foreign Adversary Controlled Applications Act: Analysis of Selected Legal Issues, by Peter J. Benson, Valerie C. Brannon, and Joanna R. Lampe. 91 PAFACAA §2(d)(1). 92 PAFACAA §§2(a), 2(d)(1)(A). 93 PAFACAA §§2(b), 2(d)(1)(B). Congressional Research Service 13 TikTok: Frequently Asked Questions and Issues for Congress Does the Protecting Americans from Foreign Adversary Controlled Applications Act force any ByteDance or TikTok owners to divest from either
~~company?~~
~~H.R. 7521, as passed by the House. would~~company? The Protecting Americans from Foreign Adversary Controlled Applications Act does not directly force ByteDance or TikTok owners to not directly force ByteDance or TikTok owners to
divest from either company. If divest from either company. If ~~H.R. 7521 were to be enacted and~~ ByteDance and TikTok owners ByteDance and TikTok owners
were to elect not to execute a qualified divestiture, that election, in and of itself, would not were to elect not to execute a qualified divestiture, that election, in and of itself, would not
constitute a violation of any provision in constitute a violation of any provision in ~~H.R. 7521~~the act. Nor would the election alone subject any . Nor would the election alone subject any
party to the civil penalties provided in the party to the civil penalties provided in the ~~bill~~act. Under . Under ~~H.R. 7521~~the Protecting Americans from Foreign Adversary Controlled Applications Act, the primary consequence of a , the primary consequence of a
decision not to divest would be a prohibition on app stores and internet hosting services enabling decision not to divest would be a prohibition on app stores and internet hosting services enabling
access to TikTok in the United States, as opposed to an affirmative requirement to divest under access to TikTok in the United States, as opposed to an affirmative requirement to divest under
penalty of legal liability. penalty of legal liability.
The combination of an election not to divest with additional conduct could subject ByteDance, The combination of an election not to divest with additional conduct could subject ByteDance,
TikTok, or other entities to civil penalties. If TikTok, or other entities to civil penalties. If ~~H.R. 7521 were to be enacted,~~ ByteDance and ByteDance and
TikTok owners were to elect not to execute a qualified divestiture, and TikTok were to fail to TikTok owners were to elect not to execute a qualified divestiture, and TikTok were to fail to
~~properly~~ comply with requests for U.S. user data comply with requests for U.S. user data in the manner required by the act during the first during the first ~~180 days~~270 days94 after enactment, after enactment,
TikTok could be subject to civil penalties.TikTok could be subject to civil penalties.~~89 After those 180 days~~95 After the 270-day period ends, an entity that provides a , an entity that provides a
marketplace for or internet hosting service that enables distribution, maintenance, or updates of marketplace for or internet hosting service that enables distribution, maintenance, or updates of
TikTok for U.S. users could be subject to civil penalties.TikTok for U.S. users could be subject to civil penalties.9096 However, if TikTok were to However, if TikTok were to ~~properly~~
comply with all user data requestscomply with all user data requests in the manner required by the act, and if all app stores and internet hosting services serving U.S. , and if all app stores and internet hosting services serving U.S.
users were to stop supporting TikTok, no party would be subject to users were to stop supporting TikTok, no party would be subject to ~~H.R. 7521~~the act’s civil penalties ’s civil penalties
simply because of the lack of divestiture.simply because of the lack of divestiture.91
~~If enacted, how could H.R. 7521 be challenged in court?~~
~~If H.R. 7521, as passed by the House, were enacted, there are several ways a challenge to the~~
~~enacted law might proceed in federal court. First, to the extent H.R. 7521 would authorize the~~
~~Attorney General to enforce the bill~~97 How could the Protecting Americans from Foreign Adversary Controlled Applications Act be challenged in court, and have any challenges been filed? There are several ways a challenge to the Protecting Americans from Foreign Adversary Controlled Applications Act might proceed in federal court. First, although the act does not clearly specify the extent to which it authorizes the Attorney General to enforce the act through administrative proceedings, an entity that was through administrative proceedings, an entity that was
subject to such administrative proceedings could file a petition for review of the agency action in subject to such administrative proceedings could file a petition for review of the agency action in

~~86 Section 2(d)(1) of H.R. 7521.~~
~~87 Sections 2(a) and 2(d)(1)(A) of H.R. 7521.~~
~~88 Sections 2(b) and 2(d)(1)(B) of H.R. 7521.~~
~~89 Ibid.~~
~~90 Sections 2(a) and 2(d)(1)(A) of H.R. 7521.~~
~~91 Section 2(d)(1) of H.R. 7521.~~
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~~TikTok: Frequently Asked Questions and Issues for Congress~~

~~the U.S. Court of Appeals for the D.C. Circuit.92 Second, if the Attorney General sued a person or~~
~~entity for violating the act, the defendant might raise a constitutional claim as a defense to~~
~~liability (which is sometimes called a defensive challenge).93~~the U.S. Court of Appeals for the D.C. Circuit.98 Second, if the Attorney General were to bring suit against a person or entity for violating the act, the defendant might raise a constitutional claim as a defense to liability (which is sometimes 94 The President may extend this period for up to 90 days if a path to a qualified divestiture has been identified, there is evidence of “significant” progress toward executing the divestiture, and there are legally binding agreements in place to enable the divestiture. PAFACAA §2(a)(3). 95 PAFACAA §§2(b), 2(d)(1)(B). 96 PAFACAA §§2(a), 2(d)(1)(A). Additionally, the President may provide a one-time extension of up to 90 days when certain conditions are met. PAFACAA §2(a)(3). 97 PAFACAA §2(d)(1). 98 See PAFACAA §3(a). As discussed in a CRS Legal Sidebar, it is not clear whether and to what extent PAFACAA authorizes administrative enforcement or other agency actions apart from civil suits. See CRS Legal Sidebar LSB11127, Regulation of TikTok Under the Protecting Americans from Foreign Adversary Controlled Applications Act: Analysis of Selected Legal Issues, by Peter J. Benson, Valerie C. Brannon, and Joanna R. Lampe. Congressional Research Service 14 link to page 25 link to page 27 link to page 27 link to page 28 link to page 28 TikTok: Frequently Asked Questions and Issues for Congress called a defensive challenge).99 Third, regulated entities or others Third, regulated entities or others
alleging harm under the act could sue to prevent enforcement of the actalleging harm under the act could sue to prevent enforcement of the act~~. This~~, which might take the form might take the form
of a pre-enforcement challenge (sometimes called an offensive challenge) to the act seeking to of a pre-enforcement challenge (sometimes called an offensive challenge) to the act seeking to
bar the Attorney General from enforcing it.bar the Attorney General from enforcing it.94100 Parties seeking to bring pre-enforcement challenges Parties seeking to bring pre-enforcement challenges
would need to demonstrate standing to sue, including showing that they faced actual or imminent would need to demonstrate standing to sue, including showing that they faced actual or imminent
harm if the act were enforced.harm if the act were enforced.~~95 H.R. 7521~~ 101 The Protecting Americans from Foreign Adversary Controlled Applications Act provides that the D.C. Circuit “shall have exclusive provides that the D.C. Circuit “shall have exclusive
jurisdiction over any challenge to this jurisdiction over any challenge to this ~~Act~~division [of P.L. 118-50] or any action, finding, or determination under this or any action, finding, or determination under this
~~Act.”96~~
~~What actions have been taken at the state level to regulate TikTok?~~
~~A number of states97 have prohibited the installation or use of TikTok on state-owned devices~~
~~through executive actions,98 legislative enactments,99 or both.100 Some states have also adopted~~
~~broader bans on installing applications or communication technologies provided by entities based~~
~~in the PRC on state-owned devices.101~~
~~In May 2023, Montana enacted a law, SB 419, that would prohibit TikTok from “operat[ing]~~
~~within the territorial jurisdiction of Montana.”102 SB 419 provides that its effective date is January~~

~~92 See Section 3(a) of H.R. 7521. As discussed in a CRS Legal Sidebar, it is not clear whether and to what extent H.R.~~
~~7521 authorizes administrative enforcement or other agency actions apart from civil suits. See CRS Legal Sidebar~~
~~LSB11127, H.R. 7521 Regulation of TikTok: Analysis of Selected Legal Issues, by Peter J. Benson, Valerie C. Brannon,~~
~~and Joanna R. Lampe.~~
93division.”102 On May 7, 2024, TikTok and ByteDance filed a petition for review in the U.S. Court of Appeals for the D.C. Circuit to challenge the constitutionality of the Protecting Americans from Foreign Adversary Controlled Applications Act.103 In their petition, TikTok and ByteDance claim that the act violates the First Amendment’s Free Speech Clause, Article I’s Bill of Attainder Clause, the Fifth Amendment’s Takings Clause, and the equal protection component of the Fifth Amendment’s Due Process Clause.104 The companies have asked the court to enjoin the Attorney General from enforcing the act.105 What actions have been taken at the state level to regulate TikTok? A number of states106 have prohibited the installation or use of TikTok on state-owned devices through executive actions,107 legislative enactments,108 or both.109 Some states have also adopted 99 See, for example, Howard M. Wasserman, “Precedent, Non-Universal Injunctions, and Judicial Departmentalism: A See, for example, Howard M. Wasserman, “Precedent, Non-Universal Injunctions, and Judicial Departmentalism: A
Model of Constitutional Adjudication,”Model of Constitutional Adjudication,” 23 Lewis & Clark ~~L. Rev.~~ ~~1077 (2020), pp. 1086–89.~~
94Law Review (2020), vol. 23, no. 4, pp. 1077-1147. 100 See, for example, ibid. at 1086. See, for example, ibid. at 1086.
95101 See CRS, See CRS, Overview of Standing, Constitution Annotated, , Constitution Annotated, available at https://constitution.congress.gov/browse/essay/artIII-S2-https://constitution.congress.gov/browse/essay/artIII-S2-
C1-6-1/ALDE_00012992/ (last visited C1-6-1/ALDE_00012992/ (last visited ~~Mar.~~March 22, 2024); CRS, 22, 2024); CRS, Actual or Imminent Injury, Constitution Annotated, , Constitution Annotated,
available at https://constitution.congress.gov/browse/essay/artIII-S2-C1-6-4-4/ALDE_00012999/ (last visited https://constitution.congress.gov/browse/essay/artIII-S2-C1-6-4-4/ALDE_00012999/ (last visited ~~Mar.~~March 22, 2024). 22, 2024).
~~96 Section 3(b) of H.R. 7521~~102 PAFACAA §3(b). For additional analysis of the act’s judicial review provisions, see CRS Legal Sidebar . For additional analysis of the act’s judicial review provisions, see CRS Legal Sidebar
LSB11127, LSB11127, ~~H.R. 7521 Regulation of TikTok~~Regulation of TikTok Under the Protecting Americans from Foreign Adversary Controlled Applications Act: Analysis of Selected Legal Issues, by Peter J. Benson, Valerie C. Brannon, , by Peter J. Benson, Valerie C. Brannon,
and Joanna R. Lampe. and Joanna R. Lampe.
~~97 See Cailey Gleeson, “These 39 States Already Ban TikTok From~~103 Petition for Review, TikTok v. Garland, No. 24-1113 (D.C. Cir. May 7, 2024). 104 Ibid. For more information about the First Amendment, the Bill of Attainder Clause, and the Takings Clause, see “What First Amendment considerations might be raised by government regulation of TikTok?”; “How might the Bill of Attainder Clause apply to legislation that names TikTok?”; and “What Takings Clause considerations might be raised by legislation that regulates TikTok?” 105 Petition for Review at 65, TikTok v. Garland, No. 24-1113 (D.C. Cir. May 7, 2024). 106 See Cailey Gleeson, “These 39 States Already Ban TikTok from Government Devices,” Government Devices,” Forbes, March 12, 2024, , March 12, 2024,
available at https://www.forbes.com/sites/caileygleeson/2024/03/12/these-39-states-already-ban-tiktok-from-available at https://www.forbes.com/sites/caileygleeson/2024/03/12/these-39-states-already-ban-tiktok-from-
government-devices/?sh=342082366705; see also Andrew Adams, “Updated: Where Is TikTok Banned? Tracking government-devices/?sh=342082366705; see also Andrew Adams, “Updated: Where Is TikTok Banned? Tracking
State by State,” State by State,” Government Technology, December 14, 2022, available at https://www.govtech.com/biz/data/where-is-, December 14, 2022, available at https://www.govtech.com/biz/data/where-is-
tiktok-banned-tracking-the-action-state-by-state. tiktok-banned-tracking-the-action-state-by-state.
98107 See, for example, State of Arizona, See, for example, State of Arizona, Executive Order 2023-10, April 4, 2023, available at , April 4, 2023, available at
https://azgovernor.gov/sites/default/files/eo_2023-10_protecting_the_states_cybersecurity_interests.pdf; Shawn Nailor, https://azgovernor.gov/sites/default/files/eo_2023-10_protecting_the_states_cybersecurity_interests.pdf; Shawn Nailor,
Secretary, Vermont Agency of Digital Service and State CIO, Memorandum: Cybersecurity Standard Update 2023-01 Secretary, Vermont Agency of Digital Service and State CIO, Memorandum: Cybersecurity Standard Update 2023-01
(February 16, 2023), available at https://digitalservices.vermont.gov/sites/digitalservices/files/doc_library/(February 16, 2023), available at https://digitalservices.vermont.gov/sites/digitalservices/files/doc_library/
Cybersecurity_Standard_Update_2023-01.pdf. Cybersecurity_Standard_Update_2023-01.pdf.
99108 House Bill 3127, 82nd Oregon Legislative Assembly (2023), available at House Bill 3127, 82nd Oregon Legislative Assembly (2023), available at
https://olis.oregonlegislature.gov/liz/2023R1/Downloads/MeasureDocument/HB3127/Enrolled. https://olis.oregonlegislature.gov/liz/2023R1/Downloads/MeasureDocument/HB3127/Enrolled.
~~100~~109 See Coalition for Independent Technology Research v. Abbott, No. 1:23-cv-783, 2023 WL 8582597, at *1 (W.D. See Coalition for Independent Technology Research v. Abbott, No. 1:23-cv-783, 2023 WL 8582597, at *1 (W.D.
Tex. Dec. 11, 2023). Tex. Dec. 11, 2023).
~~101 See Senate Bill 258, Florida Legislature (2023), available at~~
~~https://www.flsenate.gov/Session/Bill/2023/258/BillText/er/PDF; State of South Dakota Office of the Governor,~~
Executive Order 2023-02, January 20, 2023, available at https://governor.sd.gov/doc/EO%202023-02.pdf.
~~102 Senate Bill 419 §1, 68th Montana Legislature (2023), available at https://leg.mt.gov/bills/2023/billpdf/SB0419.pdf.~~
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~~TikTok: Frequently Asked Questions and Issues for Congress~~

~~1, 2024,103~~Congressional Research Service 15 TikTok: Frequently Asked Questions and Issues for Congress broader bans on installing applications or communication technologies provided by entities based in the People’s Republic of China (PRC) on state-owned devices.110 In May 2023, Montana enacted a law, Senate Bill (SB) 419, that would prohibit TikTok from “operat[ing] within the territorial jurisdiction of Montana.”111 SB 419 provides that its effective date is January 1, 2024,112 but on November 30, 2023, a federal court preliminarily enjoined that effective date. but on November 30, 2023, a federal court preliminarily enjoined that effective date.~~104~~
113 As of March 2024, the court’s injunction remains in effect pending a final determination in the As of March 2024, the court’s injunction remains in effect pending a final determination in the
case. The Attorney General of Montana has appealed the preliminary injunction to the U.S. Court case. The Attorney General of Montana has appealed the preliminary injunction to the U.S. Court
of Appeals for the Ninth Circuit.of Appeals for the Ninth Circuit.~~105~~114
If SB 419 were to take effect, TikTok and mobile app stores could be fined each time a user in If SB 419 were to take effect, TikTok and mobile app stores could be fined each time a user in
Montana accesses TikTok or is offered the ability to access or download TikTok.Montana accesses TikTok or is offered the ability to access or download TikTok.~~106~~115 The law The law
would become “void” if TikTok were sold to a company that was not, at the time of the sale, would become “void” if TikTok were sold to a company that was not, at the time of the sale,
incorporated in a country “designated as a foreign adversary in 15 C.F.R. [§]7.4.”incorporated in a country “designated as a foreign adversary in 15 C.F.R. [§]7.4.”~~107~~116
Have TikTok or other entities challenged any state actions to regulate TikTok
in court?
TikTok and a group of TikTok users each challenged SB 419, Montana’s ban on TikTok operating TikTok and a group of TikTok users each challenged SB 419, Montana’s ban on TikTok operating
within the state.within the state.~~108~~117 The challengers asked a federal district court to invalidate and enjoin SB 419 The challengers asked a federal district court to invalidate and enjoin SB 419
on multiple grounds. They argued that the law was preempted by several federal statutes, that it on multiple grounds. They argued that the law was preempted by several federal statutes, that it
regulated aspects of national security and foreign affairs that are reserved to the federal regulated aspects of national security and foreign affairs that are reserved to the federal
government, and that it violated the Constitution’s First Amendment, the Commerce Clause, the government, and that it violated the Constitution’s First Amendment, the Commerce Clause, the
Bill of Attainder Clause, and the Fourteenth Amendment’s Due Process Clause.Bill of Attainder Clause, and the Fourteenth Amendment’s Due Process Clause.~~109~~118 The court, The court,
finding that TikTok and its users were likely to succeed on some of these arguments, granted a finding that TikTok and its users were likely to succeed on some of these arguments, granted a
request to preliminarily enjoin the law from taking effect while the litigation proceeds.request to preliminarily enjoin the law from taking effect while the litigation proceeds.~~110~~119 In the In the
court’s view, SB 419 likely violates the First court’s view, SB 419 likely violates the First ~~Amendment111~~Amendment120 and the Commerce Clause, and the Commerce Clause,~~112~~121 and it is and it is
likely preempted under the foreign affairs field preemption likely preempted under the foreign affairs field preemption ~~doctrine113~~doctrine122 and by Section 721 of the 110 See Senate Bill (SB) 258, Florida Legislature (2023), available at https://www.flsenate.gov/Session/Bill/2023/258/BillText/er/PDF; State of South Dakota Office of the Governor, Executive Order 2023-02, January 20, 2023, available at https://governor.sd.gov/doc/EO%202023-02.pdf. 111 SB 419 §1, 68th Montana Legislature (2023), available at https://leg.mt.gov/bills/2023/billpdf/SB0419.pdf. 112 Ibid. §5. 113 ~~and by Section 721 of the~~
~~Defense Production Act. 114 The Attorney General of Montana has appealed the ruling to the U.S.~~
~~Court of Appeals for the Ninth Circuit.115~~
~~In addition, an organization of academics, journalists, researchers, and scientists filed a lawsuit~~
~~challenging Texas’s prohibition against using TikTok on government-issued devices.116 The~~
~~organization argued that the ban, as applied to faculty at public universities, violated its members’~~

~~103 Ibid. §5.~~
~~104~~ Alario v. Knudsen, Nos. CV 23-56-M-DWM & CV 23-61-M-DWM, 2023 WL 8270811, at *18 (D. Mont. Nov. 30, Alario v. Knudsen, Nos. CV 23-56-M-DWM & CV 23-61-M-DWM, 2023 WL 8270811, at *18 (D. Mont. Nov. 30,
2023), 2023), appeal filed, No. 24-34 (9th Cir. Jan. 3, 2024). , No. 24-34 (9th Cir. Jan. 3, 2024).
~~105~~114 See Notice of Preliminary Injunction Appeal, TikTok v. Knudsen, No. 9:23-cv-61 (D. Mont. Jan. 2, 2024). See Notice of Preliminary Injunction Appeal, TikTok v. Knudsen, No. 9:23-cv-61 (D. Mont. Jan. 2, 2024).
~~106 Senate Bill~~115 SB 419 §1, 68th Montana Legislature (2023), available at https://leg.mt.gov/bills/2023/billpdf/SB0419.pdf. 419 §1, 68th Montana Legislature (2023), available at https://leg.mt.gov/bills/2023/billpdf/SB0419.pdf.
~~107~~116 Ibid. §4. For more information about Montana’s SB 419, see CRS Legal Sidebar LSB10972, Ibid. §4. For more information about Montana’s SB 419, see CRS Legal Sidebar LSB10972, Montana’s TikTok
Ban, an Injunction, and Pending Legal Actions, by Sanchitha Jayaram and Madeline W. Donley. , by Sanchitha Jayaram and Madeline W. Donley.
~~108~~117 Alario, 2023 WL 8270811, at *18. , 2023 WL 8270811, at *18.
~~109~~118 Complaint ¶¶85 Complaint ¶¶85–-138, TikTok v. Knudsen, No. 9:23-cv-61 (D. Mont. May 22, 2023). 138, TikTok v. Knudsen, No. 9:23-cv-61 (D. Mont. May 22, 2023).
~~110~~119 Alario, 2023 WL 8270811, at *18. , 2023 WL 8270811, at *18.
~~111~~120 Alario, 2023 WL 8270811, at *12. , 2023 WL 8270811, at *12.
~~112~~121 Ibid. at *17. Ibid. at *17.
~~113~~122 For more information about the doctrine of foreign affairs preemption, see CRS Legal Sidebar WSLG1836, For more information about the doctrine of foreign affairs preemption, see CRS Legal Sidebar WSLG1836,
Constitutional Limits on States’ Efforts to “Uphold” the Paris Agreement, by Steve P. Mulligan. , by Steve P. Mulligan.
~~114 Alario, 2023 WL 8270811, at *15. Section 721 of the Defense Production Act is codified at 50 U.S.C. §4565.~~
~~115 See Notice of Preliminary Injunction Appeal, TikTok v. Knudsen, No. 9:23-cv-61 (D. Mont. Jan. 2, 2024). For more~~
~~information about the federal district court’s preliminary injunction of Montana’s law, see CRS Legal Sidebar~~
~~LSB10972, Montana’s TikTok Ban, an Injunction, and Pending Legal Actions, by Sanchitha Jayaram and Madeline W.~~
~~Donley.~~
~~116 Coalition for Independent Technology Research v. Abbott, No. 1:23-cv-783, 2023 WL 8582597, at *1–2 (W.D. Tex.~~
~~Dec. 11, 2023).~~
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~~link to page 23 link to page 24 link to page 24 link to page 25 link to page 25 link to page 26 link to page 26~~ ~~TikTok: Frequently Asked Questions and Issues for Congress~~

~~First Amendment rights.117~~ Congressional Research Service 16 link to page 25 link to page 27 link to page 27 link to page 28 link to page 28 link to page 29 link to page 29 TikTok: Frequently Asked Questions and Issues for Congress Defense Production Act.123 The Attorney General of Montana has appealed the ruling to the U.S. Court of Appeals for the Ninth Circuit.124 In addition, an organization of academics, journalists, researchers, and scientists filed a lawsuit challenging Texas’s prohibition against using TikTok on government-issued devices.125 The organization argued that the ban, as applied to faculty at public universities, violated its members’ First Amendment rights.126 In this case, the court disagreed with the challengers’ arguments. The In this case, the court disagreed with the challengers’ arguments. The
court held that, because Texas’s ban reaches only “state-owned and -managed devices,” the court held that, because Texas’s ban reaches only “state-owned and -managed devices,” the
regulation was subject to a lower level of First Amendment scrutiny, which it satisfied.regulation was subject to a lower level of First Amendment scrutiny, which it satisfied.~~118~~127 The The
court dismissed the case.court dismissed the case.~~119~~128
Are foreign governments regulating TikTok?
The European Union (EU) has undertaken regulation of TikTok as part of its effort to regulate the The European Union (EU) has undertaken regulation of TikTok as part of its effort to regulate the
digital economy, and some countries have restricted, blocked, or banned the app. Countries have digital economy, and some countries have restricted, blocked, or banned the app. Countries have
banned TikTok on government devices (e.g., Australia, Canada, the United Kingdom) or banned TikTok on government devices (e.g., Australia, Canada, the United Kingdom) or
temporarily blocked or banned TikTok due to concerns about content (e.g., Indonesia) or during temporarily blocked or banned TikTok due to concerns about content (e.g., Indonesia) or during
times of political unrest (e.g., Pakistan).times of political unrest (e.g., Pakistan).~~120~~129 Some countries have banned the app outright, Some countries have banned the app outright,
including India, which banned TikTok in 2020 and currently has a ban on 509 apps developed in including India, which banned TikTok in 2020 and currently has a ban on 509 apps developed in
China.China.~~121~~130 Nepal, Afghanistan, and Somalia have also banned TikTok due to concerns about the Nepal, Afghanistan, and Somalia have also banned TikTok due to concerns about the
content being posted on the platform.content being posted on the platform.~~122~~
~~Implications of a Potential Ban or Divestiture of~~
~~TikTok~~
~~How might a divestiture of TikTok work?~~
~~Some options ByteDance might consider if it chooses to divest TikTok could include the~~
~~following:~~
~~• Some of the investors of ByteDance might create a new company to operate~~
~~TikTok.123~~

~~117 Ibid. at *2.~~
~~118 Ibid. at *7–~~131 123 Alario, 2023 WL 8270811, at *15. Section 721 of the Defense Production Act is codified at 50 U.S.C. §4565. 124 See Notice of Preliminary Injunction Appeal, TikTok v. Knudsen, No. 9:23-cv-61 (D. Mont. Jan. 2, 2024). For more information about the federal district court’s preliminary injunction of Montana’s law, see CRS Legal Sidebar LSB10972, Montana’s TikTok Ban, an Injunction, and Pending Legal Actions, by Sanchitha Jayaram and Madeline W. Donley. 125 Coalition for Independent Technology Research v. Abbott, No. 1:23-cv-783, 2023 WL 8582597, at *1-2 (W.D. Tex. Dec. 11, 2023). 126 Ibid. at *2. 127 Ibid. at *7-9. The court held that Texas’s ban was a “a restriction on a nonpublic forum.” Ibid. at *7. For more 9. The court held that Texas’s ban was a “a restriction on a nonpublic forum.” Ibid. at *7. For more
information about the First Amendment standards applicable in public and nonpublic forums, see CRS Legal Sidebar information about the First Amendment standards applicable in public and nonpublic forums, see CRS Legal Sidebar
LSB10383, LSB10383, Religious Speech and Advertising: Current Circuit Split and its Implications for Congress, by Whitney K. , by Whitney K.
Novak, and CRS Legal Sidebar LSB10151, Novak, and CRS Legal Sidebar LSB10151, From Clamor to Calm: Restrictions on Speech at Polling Places, by , by
Valerie C. BrannonValerie C. Brannon,. .
~~119~~128 Coalition for Independent Technology Research, 2023 WL 8582597, at *9. The following sections of this , 2023 WL 8582597, at *9. The following sections of this ~~Report~~report
address the First Amendment and other constitutional considerations that could potentially be raised by regulations of address the First Amendment and other constitutional considerations that could potentially be raised by regulations of
~~TikTok:~~ “TikTok: “What First Amendment considerations might be raised by government regulation of TikTok?”; ; “How
might the Bill of Attainder Clause apply to legislation that names TikTok?”~~; and~~ ”; “What Takings Clause
considerations might be raised by ~~future~~ legislation that regulates TikTok?,”” and and “What Due Process
considerations might be raised by government regulation of TikTok?” ” For more information about legal For more information about legal
considerations potentially raised by regulations of TikTok, see CRS Legal Sidebar LSB10942, considerations potentially raised by regulations of TikTok, see CRS Legal Sidebar LSB10942, Restricting TikTok (Part
II): Legislative Proposals and Considerations for Congress, coordinated by Peter J. Benson; and CRS Legal Sidebar , coordinated by Peter J. Benson; and CRS Legal Sidebar
LSB11127, LSB11127, ~~H.R. 7521 Regulation of TikTok~~Regulation of TikTok Under the Protecting Americans from Foreign Adversary Controlled Applications Act: Analysis of Selected Legal Issues, by Peter J. Benson, Valerie C. Brannon, , by Peter J. Benson, Valerie C. Brannon,
and Joanna R. Lampe. and Joanna R. Lampe.
~~120~~129 Jennifer Hassan et Jennifer Hassan et. al al., “The U.S. , “The U.S. ~~could ban~~Could Ban TikTok. These TikTok. These ~~countries have blocked or restricted it~~Countries Have Blocked or Restricted It,” ,” Washington Post, ,
March 13, 2024.March 13, 2024.
~~121~~ 130 Reuters, “India Reuters, “India ~~adds 54 more~~Adds 54 More Chinese Chinese ~~apps to ban list; Sea says it complies with laws~~Apps to Ban List; Sea Says It Complies with Laws,” February 15, 2022.,” February 15, 2022.
~~122~~ 131 Ibid; Alex Travelli and Suhasini Raj, “What Happened When India Pulled the Plug on TikTok,” Ibid; Alex Travelli and Suhasini Raj, “What Happened When India Pulled the Plug on TikTok,” New York Times, ,
March 22, 2024; Bashir Mohamed Caato, “Outcry in Somalia over March 22, 2024; Bashir Mohamed Caato, “Outcry in Somalia over ~~government decision to ban~~Government Decision to Ban TikTok,” TikTok,” Al Jazeera, ,
August 26, 2023; “Afghanistan: Taliban August 26, 2023; “Afghanistan: Taliban ~~orders~~Orders TikTok, PUBG TikTok, PUBG ~~ban for ‘misleading’ youths~~Ban for ‘Misleading’ Youths,” ,” BBC, April 22, 2022; , April 22, 2022;
“Nepal “Nepal ~~bans~~Bans TikTok and TikTok and ~~says it disrupts social harmony~~Says It Disrupts Social Harmony,” ,” Associated Press, November 13, 2023., November 13, 2023.
~~123 For more information on investors of ByteDance, see “Where Is ByteDance Based?”~~
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~~TikTok: Frequently Asked Questions and Issues for Congress~~

~~• ByteDance might sell TikTok to a third-party, such as a group of investors or a~~
~~company.~~
~~The PRC~~ Congressional Research Service 17 link to page 6 link to page 8 link to page 8 link to page 16 link to page 16 link to page 5 TikTok: Frequently Asked Questions and Issues for Congress Potential Implications of a Ban or Divestiture of TikTok How might a divestiture of TikTok work? Some options ByteDance might consider if it chooses to divest TikTok could include the following: • Some of the investors of ByteDance might create a new company to operate TikTok.132 • ByteDance might sell TikTok to a third party, such as a group of investors or a company. The People’s Republic of China (PRC) government might not allow either of these options to occur. government might not allow either of these options to occur.~~124 Under H.R. 7521, as~~
~~passed by the House,~~ 133 Under the Protecting Americans from Foreign Adversary Controlled Applications Act, these two options would need to meet the requirements of a “qualified these two options would need to meet the requirements of a “qualified
divestiture,” which requires that the app not be controlled by, and have no operational relationship divestiture,” which requires that the app not be controlled by, and have no operational relationship
with, a foreign adversary.with, a foreign adversary.~~125~~134
Are there potential buyers for TikTok if it ~~was~~were for sale?
The parties interested in purchasing TikTok would likely depend on the sales price and the The parties interested in purchasing TikTok would likely depend on the sales price and the
components of TikTok that would be included in the sale. ByteDance might components of TikTok that would be included in the sale. ByteDance might seek to sell TikTok for sell TikTok for
billions of dollars, which would likely limit the potential buyers. TikTok has a large number of billions of dollars, which would likely limit the potential buyers. TikTok has a large number of
U.S. users and has been expanding the services offered to U.S. users on the app.U.S. users and has been expanding the services offered to U.S. users on the app.~~126~~135 The amount a The amount a
buyer is willing to pay might be lower if, for example, the sale of TikTok does not include its buyer is willing to pay might be lower if, for example, the sale of TikTok does not include its
algorithms or the data it has collected on its U.S. and other users. Although ByteDance was algorithms or the data it has collected on its U.S. and other users. Although ByteDance was
reportedly valued at $268 billion in December 2023,reportedly valued at $268 billion in December 2023,~~127~~136 the current value of the U.S. portion of the current value of the U.S. portion of
TikTok is unknown; some investors reportedly estimate that TikTok has been operating at a TikTok is unknown; some investors reportedly estimate that TikTok has been operating at a
loss.loss.~~128~~137
Other factors might also limit the potential buyers of TikTok. For example, proposals to purchase Other factors might also limit the potential buyers of TikTok. For example, proposals to purchase
TikTok from large technology companies—such as Apple, Google, and Meta—might raise TikTok from large technology companies—such as Apple, Google, and Meta—might raise
~~antitrust concerns. After the House passed H.R. 7521, several individuals and companies~~
~~reportedly expressed interest in purchasing TikTok.129~~
~~How would a prohibition on entities facilitating the provision or the sale of~~
~~TikTok affect other social media platforms?~~
~~If entities were prohibited from facilitating the provision of TikTok to U.S. users, some U.S users~~
~~might start to use or spend more time on other social media platforms. In particular, U.S. users~~
~~might increase use of social media platforms that offer short-form videos similar to TikTok, such~~
~~as Meta’s Instagram Reels and Google’s YouTube Shorts, as well as other social media platforms~~

~~124~~ 132 For more information on investors of ByteDance, see “Who owns ByteDance, and where is it located?” 133 For more information on PRC’s response to a potential sale of TikTok, see For more information on PRC’s response to a potential sale of TikTok, see “~~Does the PRC Government Exercise~~
~~Control Over~~“Does the government of the People’s Republic of China (PRC) exercise control over ByteDance?”
~~125~~” 134 For more information on the requirements of For more information on the requirements of ~~H.R. 7521~~PAFACAA, see , see ““What are the ~~Main Elements of~~ ~~H.R. 7521?”~~
~~126~~main elements of the Protecting Americans from Foreign Adversary Controlled Applications Act?” 135 For example, TikTok Shop in the United States started in September 2023 (see TikTok, “Introducing TikTok Shop,” For example, TikTok Shop in the United States started in September 2023 (see TikTok, “Introducing TikTok Shop,”
September 12, 2023, available at https://newsroom.tiktok.com/en-us/introducing-tiktok-shop). For more information on September 12, 2023, available at https://newsroom.tiktok.com/en-us/introducing-tiktok-shop). For more information on
the number of U.S. TikTok users, see the number of U.S. TikTok users, see ~~“How Many Users Does TikTok Have?”~~
~~127~~“How many users does TikTok claim to currently have?” 136 Zheping Huang and Jane Zhang, “ByteDance Offers Investors a Buyback at $268 Billion Valuation,” Zheping Huang and Jane Zhang, “ByteDance Offers Investors a Buyback at $268 Billion Valuation,” Bloomberg, ,
December 6, 2023, available at https://www.bloomberg.com/news/articles/2023-12-06/bytedance-offers-to-buy-back-5-December 6, 2023, available at https://www.bloomberg.com/news/articles/2023-12-06/bytedance-offers-to-buy-back-5-
billion-worth-of-shares-scmp. billion-worth-of-shares-scmp.
~~128~~137 Jing Yang, Kate Clark, and Erin Woo, “TikTok Ban Bill Spotlights Open Secret: App Loses Money,” Jing Yang, Kate Clark, and Erin Woo, “TikTok Ban Bill Spotlights Open Secret: App Loses Money,” The
Information, March 13, 2024, available at https://www.theinformation.com/articles/tiktok-ban-bill-spotlights-open-, March 13, 2024, available at https://www.theinformation.com/articles/tiktok-ban-bill-spotlights-open-
secret-app-loses-money. secret-app-loses-money.
~~129 For example, parties that have expressed interest in purchasing TikTok include former Treasury Secretary Steven~~
~~Mnuchin, Bobby Kotick (former CEO of Activision, a video game publisher), Kevin O’Leary (an investor in the~~
~~television show Shark Tank), and Rumble (an online video platform). See Rachel Louise Ensign and Gareth Viperz,~~
~~“Steven Mnuchin Says He Is Putting Together a Group to Buy TikTok,” Wall Street Journal, updated March 14, 2024,~~
~~available at https://www.wsj.com/tech/steven-mnuchin-says-he-is-putting-together-a-group-to-buy-tiktok-3aac4a33;~~
~~and Daysia Tolentino, “Who Could Buy TikTok? These Are the People Who Could Acquire the App,” NBC News,~~
~~March 14, 2024, available at https://www.nbcnews.com/tech/social-media/tiktok-ban-sale-buy-bill-law-download-app-~~
~~senate-date-rcna143413.~~
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Congressional Research Service 18 TikTok: Frequently Asked Questions and Issues for Congress antitrust concerns. In 2024, several individuals and companies reportedly expressed interest in purchasing TikTok.138 How would a prohibition on entities facilitating the provision or the sale of TikTok affect other social media platforms? If entities were prohibited from facilitating the provision of TikTok to U.S. users, some U.S. users might start to use or spend more time on other social media platforms. In particular, U.S. users might increase use of social media platforms that offer short-form videos similar to TikTok, such as Meta’s Instagram Reels and Google’s YouTube Shorts, as well as other social media platforms such as Snapchat, X (formerly Twitter), or Reddit. A ban might also provide the opportunity for such as Snapchat, X (formerly Twitter), or Reddit. A ban might also provide the opportunity for
new social media platforms to emerge to serve the U.S. market, although a new platform might new social media platforms to emerge to serve the U.S. market, although a new platform might
face difficulty competing with existing social media platforms.face difficulty competing with existing social media platforms.~~130~~139
If TikTok were sold, the effect on other social media platforms would depend on the actions taken If TikTok were sold, the effect on other social media platforms would depend on the actions taken
by the entity that purchased TikTok. For example, if the entity were to stop offering certain by the entity that purchased TikTok. For example, if the entity were to stop offering certain
services or implements changes that some users do not like, the users might start using or services or implements changes that some users do not like, the users might start using or
spending more time on other social media platforms. Alternatively, if the entity were to make spending more time on other social media platforms. Alternatively, if the entity were to make
improvements to TikTok, individuals might spend more time on TikTok and less time on, or stop improvements to TikTok, individuals might spend more time on TikTok and less time on, or stop
using, other social media platforms. using, other social media platforms.
Which online service providers ~~would~~may be affected by ~~prohibiting the~~
the Protecting Americans from Foreign Adversary Controlled Applications Act’s prohibition of the distribution, maintenance, or updating of TikTok in the United States?
~~Section 2 of H.R. 7521, as passed by the House, would prohibit~~Section 2 of the Protecting Americans from Foreign Adversary Controlled Applications Act prohibits any entity from distributing, any entity from distributing,
maintaining, or updating (or enabling these services of) TikTok or foreign adversary controlled maintaining, or updating (or enabling these services of) TikTok or foreign adversary controlled
applications “within the land or maritime borders of the United States,” starting applications “within the land or maritime borders of the United States,” starting ~~180~~270 days after the days after the
enactment of the law.enactment of the law.~~131~~140 Any entity that violates Section Any entity that violates Section 2 could~~2 would~~ be subject to a civil penalty in be subject to a civil penalty in
an amount to be determined an amount to be determined bybased in part on the number of U.S. users the number of U.S. users ~~that~~who “have accessed, maintained, or “have accessed, maintained, or
~~updated” the TikTok or covered application using services provided by that entity.132 The~~
~~Attorney General would~~updated” the TikTok or covered application using 138 For example, parties that have expressed interest in purchasing TikTok include former Treasury Secretary Steven Mnuchin, Bobby Kotick (former CEO of Activision, a video game publisher), Kevin O’Leary (an investor in the television show Shark Tank), and Rumble (an online video platform). See Rachel Louise Ensign and Gareth Viperz, “Steven Mnuchin Says He Is Putting Together a Group to Buy TikTok,” Wall Street Journal, updated March 14, 2024, available at https://www.wsj.com/tech/steven-mnuchin-says-he-is-putting-together-a-group-to-buy-tiktok-3aac4a33; and Daysia Tolentino, “Who Could Buy TikTok? These Are the People Who Could Acquire the App,” NBC News, March 14, 2024, available at https://www.nbcnews.com/tech/social-media/tiktok-ban-sale-buy-bill-law-download-app-senate-date-rcna143413. 139 For example, social media platforms benefit from network effects, where the perceived value of an online platform as the number of active users grows, which can make it difficult for a nascent platform to compete with incumbents. For more information about network effects and other characteristics of online platforms, see CRS Report R47662, Defining and Regulating Online Platforms, coordinated by Clare Y. Cho. 140 PAFACAA §2(a)(1). The President may authorize a 90-day extension of the 270-day deadline when certain conditions are met. PAFACAA §2(a)(3). Congressional Research Service 19 TikTok: Frequently Asked Questions and Issues for Congress services provided by that entity.141 The Attorney General can “conduct investigations related to potential violations” and pursue “conduct investigations related to potential violations” and pursue
enforcement against determined violations.enforcement against determined violations.~~133~~142
While the While the ~~bill~~Protecting Americans from Foreign Adversary Controlled Applications Act does not define “entity” under Section 2, the term could include at least the does not define “entity” under Section 2, the term could include at least the
following two types of online service providers: following two types of online service providers:
• • An online marketplace that allows internet users to find, download, install, or that allows internet users to find, download, install, or
update a software application. The example provided in the update a software application. The example provided in the ~~bill~~act is an “online is an “online
mobile application store.”mobile application store.”~~134~~143 In the United States, the TikTok mobile app is In the United States, the TikTok mobile app is
mostly distributed through app stores operated by major mobile platform mostly distributed through app stores operated by major mobile platform
developers such as Apple Inc. (accessible through its iOS platform) and Google developers such as Apple Inc. (accessible through its iOS platform) and Google
LLC (through its Android platform). TikTok is also available through third-party LLC (through its Android platform). TikTok is also available through third-party
app stores, including those operated by Amazon.com, Inc. and Samsung app stores, including those operated by Amazon.com, Inc. and Samsung
Electronics Co., Ltd. To comply with Section 2 of the Electronics Co., Ltd. To comply with Section 2 of the ~~bill~~act, these app stores would , these app stores would
either have to remove TikTok from its offerings or make the app unavailable to either have to remove TikTok from its offerings or make the app unavailable to
U.S. users.U.S. users.~~135~~144
• • An internet hosting service vendor that provides data storage and computing that provides data storage and computing
resources “for the accommodation and maintenance” of TikTok’s content and resources “for the accommodation and maintenance” of TikTok’s content and
services.services.~~136~~145 The The ~~bill~~act includes hosting services such as “file hosting, domain name server hosting, cloud hosting, and virtual private server hosting.”146 ~~includes hosting services such as “file hosting, domain name~~

~~130 For example, social media platforms benefit from network effects, where the perceived value of an online platform~~
~~as the number of active users grows, which can make it difficult for a nascent platform to compete with incumbents.~~
~~For more information about network effects and other characteristics of online platforms, see CRS Report R47662,~~
Defining and Regulating Online Platforms, coordinated by Clare Y. Cho.
~~131 Section 2(a), (g)(3)(A) of H.R. 7521.~~
~~132 Section 2(d)(1) of H.R. 7521.~~
~~133 Section 2(d)(2)(A) of H.R. 7521.~~
~~134 Section 2(a)(1)(A) of H.R. 7521.~~
~~135 Ibid.~~
~~136 Section 2(g)(5) of H.R. 7521.~~
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~~server hosting, cloud hosting, and virtual private server hosting.”137~~ According to According to
a network traffic analysis, TikTok may have used hosting service provided by at a network traffic analysis, TikTok may have used hosting service provided by at
least 10 vendors, including U.S.-based cloud service providers Amazon Web least 10 vendors, including U.S.-based cloud service providers Amazon Web
Services (AWS), Google Cloud Platform, and Oracle Cloud.Services (AWS), Google Cloud Platform, and Oracle Cloud.~~138~~
147 In September 2020, the Oracle Corporation announced that it had become In September 2020, the Oracle Corporation announced that it had become
TikTok’s “secure cloud technology provider” to deploy, scale, and operate TikTok’s “secure cloud technology provider” to deploy, scale, and operate
TikTok systems in the Oracle Cloud.TikTok systems in the Oracle Cloud.~~139~~148 TikTok claims that it has “created a stand- TikTok claims that it has “created a stand-
alone version of the TikTok platform for the United States that is isolated inside alone version of the TikTok platform for the United States that is isolated inside
servers in Oracle’s U.S. cloud environment but can communicate with the global servers in Oracle’s U.S. cloud environment but can communicate with the global
TikTok service in controlled and monitored ways.”TikTok service in controlled and monitored ways.”~~140~~
149 To comply with Section 2 of the To comply with Section 2 of the ~~bill~~Protecting Americans from Foreign Adversary Controlled Applications Act, an internet hosting service vendor would , an internet hosting service vendor would
have to either stop hosting TikTok’s content and services or disable “the have to either stop hosting TikTok’s content and services or disable “the
distribution, maintenance, or updating of” TikTok for U.S. users.distribution, maintenance, or updating of” TikTok for U.S. users.~~141~~
~~Additionally, upon request, “the entity that owns or controls” TikTok would be~~150 141 PAFACAA §2(d)(1). 142 PAFACAA §2(d)(2)(A). 143 PAFACAA §2(a)(1)(A). 144 Ibid. 145 PAFACAA §2(g)(5). 146 Ibid. 147 “TikTok Application,” Netify.ai, available at https://www.netify.ai/resources/applications/tiktok, accessed March 2024. 148 Oracle Corporation, “Oracle Chosen as TikTok’s Secure Cloud Provider,” press release, September 19, 2020, available at https://www.oracle.com/news/announcement/oracle-chosen-as-tiktok-secure-cloud-provider-091920/. 149 “TikTok’s Commitment to U.S. National Security,” TikTok, available at https://usds.tiktok.com/usds-about/, accessed March 2024. 150 PAFACAA §2(a)(1)(B). Congressional Research Service 20 link to page 20 TikTok: Frequently Asked Questions and Issues for Congress Additionally, upon request, “the entity that owns or controls” TikTok is required to required to
provide “all the available data related to” a U.S. user’s account (including posts, photos, and provide “all the available data related to” a U.S. user’s account (including posts, photos, and
videos) to the requesting user before the user lost access to the app.videos) to the requesting user before the user lost access to the app.~~142~~151 Such data would be Such data would be
intended to enable the user to transfer the content to “alternative applications.”intended to enable the user to transfer the content to “alternative applications.”~~143~~
~~Would~~152 Will U.S. users still be able to access TikTok content under the ~~current~~
language in ~~H.R. 7521~~the Protecting Americans from Foreign Adversary Controlled Applications Act prohibiting the distribution, maintenance, or updating
of TikTok in the United States?
~~H.R. 7521, as passed by the House,~~The Protecting Americans from Foreign Adversary Controlled Applications Act does not specifically address the topic of users within the land does not specifically address the topic of users within the land
or maritime borders of the United States or U.S. citizens outside those borders accessing TikTok or maritime borders of the United States or U.S. citizens outside those borders accessing TikTok
content or using its services after potential enactment of the bill. It also does not address users content or using its services after potential enactment of the bill. It also does not address users
within the United States bypassing geographic restrictions to access non-U.S. instances of within the United States bypassing geographic restrictions to access non-U.S. instances of
TikTok. For example, a user physically located in the United States could potentially access non-TikTok. For example, a user physically located in the United States could potentially access non-
U.S. instances of TikTok or app stores by appearing to be located outside the United States using U.S. instances of TikTok or app stores by appearing to be located outside the United States using
~~a Virtual Private Network~~a virtual private network (VPN) or other services that allow (VPN) or other services that allow IPinternet protocol (IP) address masking. address masking.~~144~~

~~137 Ibid.~~
~~138 “TikTok Application,” Netify.ai, available at https://www.netify.ai/resources/applications/tiktok, accessed March~~
~~2024.~~
~~139 Oracle Corporation, “Oracle Chosen as TikTok’s Secure Cloud Provider,” press release, September 19, 2020,~~
~~available at https://www.oracle.com/news/announcement/oracle-chosen-as-tiktok-secure-cloud-provider-091920/.~~
~~140 “TikTok’s Commitment to U.S. National Security,” TikTok, available at https://usds.tiktok.com/usds-about/,~~
~~accessed March 2024.~~
~~141 Section 2(a)(1)(B) of H.R. 7521.~~
~~142 Section 2(b) of H.R. 7521.~~
~~143 Ibid.~~
~~144~~153 What First Amendment considerations might be raised by government regulation of TikTok? Laws regulating a medium of expression, such as a newspaper or other platform for speech, can trigger First Amendment scrutiny, meaning that if subject to a legal challenge, a court might review the law for compliance with the First Amendment.154 Federal and state restrictions on TikTok have been subject to legal challenges alleging the restrictions violate the First Amendment’s Free Speech Clause. One trial court held a Montana restriction on TikTok was likely unconstitutional, as discussed above.155 Another trial court similarly issued a preliminary ruling on First Amendment grounds, preventing the federal government from enforcing an E.O. restricting transactions related to WeChat.156 TikTok and ByteDance have filed a petition for 151 PAFACAA §2(b). 152 Ibid. 153 A VPN is “a virtual network built on top of existing networks that can provide a secure communications mechanism A VPN is “a virtual network built on top of existing networks that can provide a secure communications mechanism
for data and IP information transmitted between networks.” National Institute of Standards and Technology, U.S. for data and IP information transmitted between networks.” National Institute of Standards and Technology, U.S.
Department of Commerce, Department of Commerce, Computer Security Resource Center (CSRC) Glossary: Virtual Private Network (VPN), ,
available at https://csrc.nist.gov/glossary/term/virtual_private_network. See also Aliza Vigderman and Gabe Turner, available at https://csrc.nist.gov/glossary/term/virtual_private_network. See also Aliza Vigderman and Gabe Turner,
“How to Hide IP Addresses,” “How to Hide IP Addresses,” Security.org, January 16, 2024, available at https://www.security.org/vpn/hide-your-ip-, January 16, 2024, available at https://www.security.org/vpn/hide-your-ip-
address/. address/.
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~~link to page 18~~ ~~TikTok: Frequently Asked Questions and Issues for Congress~~

~~What First Amendment considerations might be raised by~~154 U.S. Const. amend. I (“Congress shall make no law ... abridging the freedom of speech.”); see, for example, Arcara v. Cloud Books, Inc., 478 U.S. 697, 705-707 (1986) (explaining that while government
~~regulation of TikTok?~~
~~Laws regulating a medium of expression, such as a newspaper or other platform for speech, can~~
~~trigger First Amendment scrutiny, meaning that if subject to a legal challenge, a court might~~
~~review the law for compliance with the First Amendment.145 Federal and state restrictions on~~
~~TikTok have been subject to legal challenges alleging the restrictions violate the First~~
~~Amendment’s Free Speech Clause. One trial court held a Montana restriction on TikTok was~~
~~likely unconstitutional, as discussed above.146 Another trial court similarly issued a preliminary~~
~~ruling on First Amendment grounds, preventing the federal government from enforcing an~~
~~executive order restricting transactions related to WeChat.147~~regulation of conduct with “no element of protected expression” does not trigger First Amendment scrutiny, constitutional scrutiny is triggered by government action that targets “conduct with a significant expressive element” or “where a statute based on a nonexpressive activity has the inevitable effect of singling out those engaged in expressive activity”). 155 See supra “Have TikTok or other entities challenged any state actions to regulate TikTok in court?”; Alario v. Knudsen, Nos. CV 23-56-M-DWM & CV 23-61-M-DWM, 2023 WL 8270811, at *5 (D. Mont. Nov. 30, 2023), appeal filed, No. 24-34 (9th Cir. Jan. 3, 2024). For further discussion of the Alario case, see CRS Legal Sidebar LSB10972, Montana’s TikTok Ban, an Injunction, and Pending Legal Actions, by Sanchitha Jayaram and Madeline W. Donley. 156 U.S. WeChat Users Alliance v. Trump, 488 F. Supp. 3d 912, 917 (N.D. Cal. 2020). Congressional Research Service 21 TikTok: Frequently Asked Questions and Issues for Congress review that alleges the Protecting Americans from Foreign Adversary Controlled Applications Act violates the First Amendment.157
One relevant issue in a First Amendment challenge is the type of free speech interest being One relevant issue in a First Amendment challenge is the type of free speech interest being
asserted. While foreign corporations outside of a U.S. territory may not be able to claim First asserted. While foreign corporations outside of a U.S. territory may not be able to claim First
Amendment protections, separately incorporated organizations within the United States may raise Amendment protections, separately incorporated organizations within the United States may raise
First Amendment claims.First Amendment claims.~~148~~158 In prior legal challenges, both TikTok and the platform’s U.S. users In prior legal challenges, both TikTok and the platform’s U.S. users
have asserted First Amendment claims. U.S. users may have an interest both in receiving speech have asserted First Amendment claims. U.S. users may have an interest both in receiving speech
from from ~~abroad149~~abroad159 as well as in purely domestic exchanges. as well as in purely domestic exchanges.
Generally, if a law burdens expressive activity, the level of constitutional scrutiny that a court Generally, if a law burdens expressive activity, the level of constitutional scrutiny that a court
applies depends in large part on the type of expression being regulated and how the law applies depends in large part on the type of expression being regulated and how the law
operates.operates.~~150~~160 Laws that regulate speech based on its content usually trigger an analysis known as Laws that regulate speech based on its content usually trigger an analysis known as
strict scrutiny, under which a law is presumptively unconstitutional and valid only if it is the least strict scrutiny, under which a law is presumptively unconstitutional and valid only if it is the least
restrictive means to serve a compelling government interest.restrictive means to serve a compelling government interest.~~151~~161 Thus, if a law targeted TikTok or Thus, if a law targeted TikTok or
other speech platforms because of the speech they host, or targets certain speech on those other speech platforms because of the speech they host, or targets certain speech on those
platforms, it could trigger strict scrutiny and would be more likely to be held unconstitutional.platforms, it could trigger strict scrutiny and would be more likely to be held unconstitutional.~~152~~162
In contrast, if a law did not target TikTok or another platform because of its speech and did not In contrast, if a law did not target TikTok or another platform because of its speech and did not
otherwise discriminate between particular viewpoints or types of content, it might be subject to otherwise discriminate between particular viewpoints or types of content, it might be subject to
review under intermediate scrutiny.review under intermediate scrutiny.~~153~~163 Intermediate scrutiny requires the government to show the Intermediate scrutiny requires the government to show the
law advances an “important or substantial” government interest unrelated to the suppression of law advances an “important or substantial” government interest unrelated to the suppression of
speech and is “no greater than is essential” to further this interest.speech and is “no greater than is essential” to further this interest.~~154~~164 Under some formulations of Under some formulations of
intermediate scrutiny, the government must also show that the law leaves open “ample alternative intermediate scrutiny, the government must also show that the law leaves open “ample alternative

~~145 U.S. Const. amend. I (“Congress shall make no law . . . abridging the freedom of speech.”); see, for example, Arcara~~
~~v. Cloud Books, Inc., 478 U.S. 697, 705–07 (1986) (explaining that while government regulation of conduct with “no~~
~~element of protected expression” does not trigger First Amendment scrutiny, constitutional scrutiny is triggered by~~
~~government action that targets “conduct with a significant expressive element” or “where a statute based on a~~
~~nonexpressive activity has the inevitable effect of singling out those engaged in expressive activity”).~~
~~146 See supra “Have TikTok or other entities challenged any state actions to regulate TikTok in court?”; Alario v.~~
~~Knudsen, Nos. CV 23-56-M-DWM & CV 23-61-M-DWM, 2023 WL 8270811, at *5 (D. Mont. Nov. 30, 2023),~~ ~~appeal~~
~~filed, No. 24-34 (9th Cir. Jan. 3, 2024). For further discussion of the Alario case, see CRS Legal Sidebar LSB10972,~~
Montana’s TikTok Ban, an Injunction, and Pending Legal Actions, by Sanchitha Jayaram and Madeline W. Donley.
~~147 U.S. WeChat Users Alliance v. Trump, 488 F. Supp. 3d 912, 917 (N.D. Cal. 2020).~~
~~148~~channels for communication of the information.”165 Intermediate scrutiny is easier to satisfy than strict scrutiny but is still relatively robust: the trial court rulings referenced above concluded that the federal and state governments had likely failed to satisfy intermediate scrutiny.166 157 Petition for Review at 30-56, TikTok v. Garland, No. 24-1113 (D.C. Cir. May 7, 2024). 158 Agency for Int’l Dev. v. All. for Open Soc’y Int’l, Inc., 140 S. Ct. 2082, 2086 Agency for Int’l Dev. v. All. for Open Soc’y Int’l, Inc., 140 S. Ct. 2082, 2086~~–87~~-2087 (2020). (2020).
~~149~~159 See, for example, Lamont v. Postmaster General, 381 U.S. 301, 305 (1965). See, for example, Lamont v. Postmaster General, 381 U.S. 301, 305 (1965).
~~150~~160 See generally, for example, CRS Report R47986, See generally, for example, CRS Report R47986, Freedom of Speech: An Overview, by Victoria L. Killion. , by Victoria L. Killion.
~~151~~161 Reed v. Town of Gilbert, 576 U.S. 155, 163 (2015); CRS In Focus IF12308, Reed v. Town of Gilbert, 576 U.S. 155, 163 (2015); CRS In Focus IF12308, Free Speech: When and Why Content-
Based Laws Are Presumptively Unconstitutional, by Victoria L. Killion. , by Victoria L. Killion.
~~152~~162 See, for example, Arkansas Writers’ Project, Inc. v. Ragland, 481 U.S. 221, 229, 231 (1987). See, for example, Arkansas Writers’ Project, Inc. v. Ragland, 481 U.S. 221, 229, 231 (1987).
~~153~~163 For example, Turner Broad. Sys. v. FCC, 512 U.S. 622, 661 For example, Turner Broad. Sys. v. FCC, 512 U.S. 622, 661~~–62~~-662 (1994). (1994).
~~154~~164 Turner Broad. Sys., 512 U.S. at 662. 165 Clark v. Cmty. for Creative Non-Violence, 468 U.S. 288, 293 (1984). 166 U.S. WeChat Users Alliance v. Trump, 488 F. Supp. 3d 912, 927-928 (N.D. Cal. 2020); Alario v. Knudsen, Nos. CV 23-56-M-DWM & CV 23-61-M-DWM, 2023 WL 8270811, at *8 (D. Mont. Nov. 30, 2023), appeal filed, No. 24-34 (9th Cir. Jan. 3, 2024). For a more in-depth discussion of possible First Amendment limitations on the federal government’s ability to regulate TikTok, see CRS Legal Sidebar LSB10942, Restricting TikTok (Part II): Legislative Proposals and Considerations for Congress, coordinated by Peter J. Benson; and CRS Legal Sidebar LSB11127, Regulation of TikTok Under the Protecting Americans from Foreign Adversary Controlled Applications Act: Analysis of Selected Legal Issues, by Peter J. Benson, Valerie C. Brannon, and Joanna R. Lampe. Congressional Research Service 22 TikTok: Frequently Asked Questions and Issues for Congress Turner Broad. Sys., 512 U.S. at 662.
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~~channels for communication of the information.”155 Intermediate scrutiny is easier to satisfy than~~
~~strict scrutiny but is still relatively robust: the trial court rulings referenced above concluded that~~
~~the federal and state governments had likely failed to satisfy intermediate scrutiny.156~~
How might the Bill of Attainder Clause apply to legislation that names
TikTok?
Article I, Section 9, Clause 3Article I, Section 9, Clause 3, of the Constitution prohibits Congress from enacting bills of of the Constitution prohibits Congress from enacting bills of
attainder—legislation that imposes punishment on an identifiable person or group without trial.attainder—legislation that imposes punishment on an identifiable person or group without trial.~~157~~167
Because Because ~~some~~the Protecting Americans from Foreign Adversary Controlled Applications Act and some other recent legislative proposals identify TikTok or ByteDance by name, questions have recent legislative proposals identify TikTok or ByteDance by name, questions have
arisen as to whether such arisen as to whether such legislation and proposals may be unconstitutional bills of attainder.proposals may be unconstitutional bills of attainder.~~158~~168 TikTok and ByteDance have raised an argument that the Protecting Americans from Foreign Adversary Controlled Applications Act is an unlawful bill of attainder in a lawsuit the companies filed to challenge the constitutionality of that act.169
Courts analyzing bill of attainder challenges consider three questions. First, does the challenged Courts analyzing bill of attainder challenges consider three questions. First, does the challenged
bill apply with specificity? Second, does it impose punishment? Third, does it do so without a bill apply with specificity? Second, does it impose punishment? Third, does it do so without a
judicial trial? If all three factors are met, a court must strike down the legislation as a bill of judicial trial? If all three factors are met, a court must strike down the legislation as a bill of
attainder.attainder.~~159~~170
With respect to the first question, if a bill applies to a named individual or entity, courts are likely With respect to the first question, if a bill applies to a named individual or entity, courts are likely
to hold that the specificity requirement is satisfied.to hold that the specificity requirement is satisfied.~~160~~171 Historical bill of attainder cases involved Historical bill of attainder cases involved
legislation that targeted individuals or identifiable groups of people.legislation that targeted individuals or identifiable groups of people.~~161~~172 Although the Supreme Although the Supreme
Court has not considered whether the Bill of Attainder Clause also protects corporations such as Court has not considered whether the Bill of Attainder Clause also protects corporations such as
TikTok and ByteDance, federal appeals courts considering bill of attainder challenges brought by TikTok and ByteDance, federal appeals courts considering bill of attainder challenges brought by
corporations have either held that the clause protects corporations have either held that the clause protects ~~corporations162~~corporations173 or assumed that it does. or assumed that it does.~~163~~174
Identifying TikTok or ByteDance by name in legislation may meet the specificity requirement. Identifying TikTok or ByteDance by name in legislation may meet the specificity requirement.
The second question, whether a bill imposes punishment, is the most complex. Courts apply three The second question, whether a bill imposes punishment, is the most complex. Courts apply three
tests for assessing whether a law imposes punishment, known as the historical, functional, and tests for assessing whether a law imposes punishment, known as the historical, functional, and
motivational tests.motivational tests.~~164~~175 The historical test deems a law to be punitive if it is one of a limited set of legislative actions that were held to be bills of attainder from before the Founding of the United States through the mid-20th century, including banishment, imprisonment, confiscation of property, or employment bans.176 The functional test is generally given the most weight of the three tests and considers “whether the law under challenge, viewed in terms of the type and 167 ~~The historical test deems a law to be punitive if it is one of a limited set of~~

~~155 Clark v. Cmty. for Creative Non-Violence, 468 U.S. 288, 293 (1984).~~
~~156 U.S. WeChat Users Alliance v. Trump, 488 F. Supp. 3d 912, 927–28 (N.D. Cal. 2020); Alario v. Knudsen, Nos. CV~~
~~23-56-M-DWM & CV 23-61-M-DWM, 2023 WL 8270811, at *8 (D. Mont. Nov. 30, 2023), appeal filed, No. 24-34~~
~~(9th Cir. Jan. 3, 2024). For a more in-depth discussion of possible First Amendment limitations on the federal~~
~~government’s ability to regulate TikTok, see CRS Legal Sidebar LSB10942,~~ ~~Restricting TikTok (Part II): Legislative~~
~~Proposals and Considerations for Congress, coordinated by Peter J. Benson; and CRS Legal Sidebar LSB11127,~~ ~~H.R.~~
~~7521 Regulation of TikTok: Analysis of Selected Legal Issues, by Peter J. Benson, Valerie C. Brannon, and Joanna R.~~
~~Lampe.~~
~~157~~ Nixon v. Administrator of General Services, 433 U.S. 425, 468 (1977). A related provision prohibits state bills of Nixon v. Administrator of General Services, 433 U.S. 425, 468 (1977). A related provision prohibits state bills of
attainder. U.S. Const. art. I, §10, cl. 1. attainder. U.S. Const. art. I, §10, cl. 1.
~~158~~168 With respect to With respect to ~~H.R. 7521 specifically~~the provisions in PAFACAA that name TikTok, a CRS Legal Sidebar discusses why courts may be unlikely to strike down , a CRS Legal Sidebar discusses why courts may be unlikely to strike down
~~that legislation~~materially similar provisions as a bill of attainder. See CRS Legal Sidebar LSB11127, as a bill of attainder. See CRS Legal Sidebar LSB11127, ~~H.R. 7521 Regulation of TikTok~~Regulation of TikTok Under the Protecting Americans from Foreign Adversary Controlled Applications Act: Analysis of
Selected Legal Issues, by Peter J. Benson, Valerie C. Brannon, and Joanna R. Lampe. , by Peter J. Benson, Valerie C. Brannon, and Joanna R. Lampe.
~~159~~169 Petition for Review at 56-59, TikTok v. Garland, No. 24-1113 (D.C. Cir. May 7, 2024). 170 Nixon, 433 U.S. at 470, 433 U.S. at 470~~–73.~~
~~160~~-473. 171 See, for example, ibid. at 471 See, for example, ibid. at 471~~–72~~-472 (acknowledging the challenged act’s “specificity—the fact that it refers to (acknowledging the challenged act’s “specificity—the fact that it refers to
appellant by name”). appellant by name”).
~~161~~172 See, for example, ibid. at 473 See, for example, ibid. at 473~~–75~~-475; see also United States v. Lovett, 328 U. S. 303 (1946) (barring certain named ; see also United States v. Lovett, 328 U. S. 303 (1946) (barring certain named
individuals from drawing federal salaries); United States v. Brown, 381 U. S. 437 (1965) (prohibiting Communists individuals from drawing federal salaries); United States v. Brown, 381 U. S. 437 (1965) (prohibiting Communists
from serving as labor union officers); Ex parte Garland, 4 Wall. 333 (1867) (barring former Confederate sympathizers from serving as labor union officers); Ex parte Garland, 4 Wall. 333 (1867) (barring former Confederate sympathizers
from holding certain jobs); Cummings v. Missouri, 4 Wall. 277 (1867) (same). from holding certain jobs); Cummings v. Missouri, 4 Wall. 277 (1867) (same).
~~162~~173 For example, Consolidated Edison Co. of N.Y., Inc. v. Pataki, 292 F.3d 338, 349 (2d Cir. 2002). For example, Consolidated Edison Co. of N.Y., Inc. v. Pataki, 292 F.3d 338, 349 (2d Cir. 2002).
~~163~~174 For example, Kaspersky Lab, Inc. v. U.S. Dept. of Homeland Sec., 909 F.3d 446, 543 For example, Kaspersky Lab, Inc. v. U.S. Dept. of Homeland Sec., 909 F.3d 446, 543~~–54~~-554 (D.C. Cir. 2018); SBC (D.C. Cir. 2018); SBC
Communications, Inc. v. FCC, 154 F.3d 226, 234 (5th Cir. 1998). Communications, Inc. v. FCC, 154 F.3d 226, 234 (5th Cir. 1998).
~~164~~175 Nixon, 433 U.S. at 473, 433 U.S. at 473~~–83~~-483. 176 Ibid. at 473-475. .
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~~legislative actions that were held to be bills of attainder from before the Founding of the United~~
~~States through the mid-20th century, including banishment, imprisonment, confiscation of~~
~~property, or employment bans.165 The functional test is generally given the most weight of the~~
~~three tests and considers “whether the law under challenge, viewed in terms of the type and~~
severity of burdens imposed, reasonably can be said to further nonpunitive legislative severity of burdens imposed, reasonably can be said to further nonpunitive legislative
purposes.”purposes.”~~166~~177 The third test for punishment considers whether the legislature that enacted a The third test for punishment considers whether the legislature that enacted a
challenged law was motivated by an intent to punish the targeted entity.challenged law was motivated by an intent to punish the targeted entity.~~167~~178 The question of The question of
whether a bill imposes punishment is highly fact-dependent. A court reviewing legislation naming whether a bill imposes punishment is highly fact-dependent. A court reviewing legislation naming
TikTok would TikTok would likely assess the provisions aimed at TikTok under these three tests to determine whether assess the provisions aimed at TikTok under these three tests to determine whether
the law was punishing TikTok. As a general matter, review of whether legislation is punitive for the law was punishing TikTok. As a general matter, review of whether legislation is punitive for
purposes of the Bill of Attainder Clause is deferential, and federal courts rarely strike down laws purposes of the Bill of Attainder Clause is deferential, and federal courts rarely strike down laws
as bills of attainder.as bills of attainder.~~168~~179
With respect to the third question, if a bill provides for a judicial trial before imposing sanctions, With respect to the third question, if a bill provides for a judicial trial before imposing sanctions,
it falls outside the prohibition on bills of attainder.it falls outside the prohibition on bills of attainder.~~169~~180 Thus, a bill that imposed legal consequences Thus, a bill that imposed legal consequences
on TikTok or another entity only after a trial likely would not be struck down as a bill of on TikTok or another entity only after a trial likely would not be struck down as a bill of
attainder.attainder.~~170~~181
What Takings Clause considerations might be raised by ~~future~~ legislation that
regulates TikTok?
The Fifth Amendment’s Takings Clause prohibits the United States from taking private property The Fifth Amendment’s Takings Clause prohibits the United States from taking private property
without just compensation.without just compensation.~~171~~182 The Takings Clause’s protections apply to U.S. persons and to The Takings Clause’s protections apply to U.S. persons and to
foreign individuals and entities with substantial connections to the United States, including those foreign individuals and entities with substantial connections to the United States, including those
whose property in the United States is taken by the federal government.whose property in the United States is taken by the federal government.~~172~~
183 TikTok and ByteDance have alleged that the Protecting Americans from Foreign Adversary Controlled Applications Act effects an unconstitutional taking in a lawsuit challenging the constitutionality of that act.184 The Supreme Court has distinguished between two types of takings: physical takings and The Supreme Court has distinguished between two types of takings: physical takings and
regulatory takings.regulatory takings.~~173~~185 Physical takings are the “paradigmatic” example of a taking and occur Physical takings are the “paradigmatic” example of a taking and occur

~~165 Ibid. at 473–75.~~
~~166 Ibid. at 475–76~~when the government directly appropriates or physically invades private property.186 Regulatory 177 Ibid. at 475-476; see also; see also Kaspersky Lab, 909 F.3d at 455. , 909 F.3d at 455.
~~167~~178 Nixon, 433 U.S. at 478. , 433 U.S. at 478.
~~168~~179 For additional discussion of bill of attainder doctrine, see CRS., For additional discussion of bill of attainder doctrine, see CRS., Bills of Attainder Doctrine, Constitution Annotated, , Constitution Annotated,
available at https://constitution.congress.gov/browse/essay/artI-S9-C3-2/ALDE_00013187/ (last visited Mar. 21, 2024). available at https://constitution.congress.gov/browse/essay/artI-S9-C3-2/ALDE_00013187/ (last visited Mar. 21, 2024).
~~169~~180 See, for example, See, for example, Nixon, 433 U.S. at 538, 433 U.S. at 538~~–39~~-539 (“Under our cases, therefore, bills of attainder require two elements: (“Under our cases, therefore, bills of attainder require two elements:
first, a specific designation of persons or groups as subjects of the legislation, and, second, a[n] .first, a specific designation of persons or groups as subjects of the legislation, and, second, a[n] . . .. arbitrary . arbitrary
deprivation deprivation ~~. .~~ ... without notice, trial, or other hearing.”). . without notice, trial, or other hearing.”).
~~170~~181 Some federal appeals courts have held or assumed that the Bill of Attainder Clause does not apply to actions of the Some federal appeals courts have held or assumed that the Bill of Attainder Clause does not apply to actions of the
executive branch. See Paradissiotis v. Rubin, 171 F.3d 983, 988 (5th Cir. 1999) and cases cited. The Supreme Court has executive branch. See Paradissiotis v. Rubin, 171 F.3d 983, 988 (5th Cir. 1999) and cases cited. The Supreme Court has
not considered this question, and the facts in prior cases differ from agency enforcement against TikTok that might be not considered this question, and the facts in prior cases differ from agency enforcement against TikTok that might be
authorized under existing legislative proposals. However, the limited available authority suggests that legislation authorized under existing legislative proposals. However, the limited available authority suggests that legislation
imposing legal consequences only after discretionary agency action may not be struck down as a bill of attainder. imposing legal consequences only after discretionary agency action may not be struck down as a bill of attainder.
~~171~~182 Ibid.; Lingle v. Chevron U.S.A., Inc., 544 U.S. 528, 536 (2005). Ibid.; Lingle v. Chevron U.S.A., Inc., 544 U.S. 528, 536 (2005).
~~172~~183 For example, Atamirzayeva v. United States, 77 Fed. Cl. 378, 385 (Fed. Cl. 2007) (“Regarding the Takings Clause For example, Atamirzayeva v. United States, 77 Fed. Cl. 378, 385 (Fed. Cl. 2007) (“Regarding the Takings Clause
of the Fifth Amendment, nonresident aliens may invoke the Takings Clause to seek remuneration for the expropriation of the Fifth Amendment, nonresident aliens may invoke the Takings Clause to seek remuneration for the expropriation
of their property located within the United States. . . . However, the precise issue regarding whether a nonresident alien of their property located within the United States. . . . However, the precise issue regarding whether a nonresident alien
must demonstrate a substantial connection with the United States to have standing to invoke the Takings Clause must demonstrate a substantial connection with the United States to have standing to invoke the Takings Clause
regarding property outside the United States remains unsettledregarding property outside the United States remains unsettled ~~. . .~~ .”) (citing Russian Volunteer Fleet v. United States, .”) (citing Russian Volunteer Fleet v. United States,
282 U.S. 481, 491282 U.S. 481, 491~~–92~~-492 (1931)). (1931)).
~~173~~184 Petition for Review at 62-65, TikTok v. Garland, No. 24-1113 (D.C. Cir. May 7, 2024). 185 See Tahoe-Sierra Preservation Council, Inc. v. Tahoe Regional Planning Agency, 535 U.S. 302, 321 (2002) (“The See Tahoe-Sierra Preservation Council, Inc. v. Tahoe Regional Planning Agency, 535 U.S. 302, 321 (2002) (“The
text of the Fifth Amendment itself provides a basis for drawing a distinction between physical takings and regulatory text of the Fifth Amendment itself provides a basis for drawing a distinction between physical takings and regulatory
takings.”). takings.”).
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~~when the government directly appropriates or physically invades private property.174 Regulatory~~
186 Lingle, 544 U.S. at 537 (“The paradigmatic taking requiring just compensation is a direct government appropriation or physical invasion of private property.”). Congressional Research Service 24 TikTok: Frequently Asked Questions and Issues for Congress takings involve a government acting in its “regulatory capacity”takings involve a government acting in its “regulatory capacity”~~175~~187 and are typically analyzed and are typically analyzed
under the framework created by the Supreme Court in under the framework created by the Supreme Court in Penn Central Transportation Company v.
New York City..~~176~~188 Under the Under the Penn Central framework, courts consider the following three factors framework, courts consider the following three factors
to determine if there is a regulatory taking: (1) “[t]he economic impact of the regulation on the to determine if there is a regulatory taking: (1) “[t]he economic impact of the regulation on the
claimant,” (2) “the extent to which the regulation has interfered with distinct investment-backed claimant,” (2) “the extent to which the regulation has interfered with distinct investment-backed
expectations,” and (3) “the character of the government action,” such as whether it is akin to a expectations,” and (3) “the character of the government action,” such as whether it is akin to a
physical invasion or whether it is “adjusting the benefits and burdens of economic life to promote physical invasion or whether it is “adjusting the benefits and burdens of economic life to promote
the common good.”the common good.”~~177~~
~~TikTok might challenge future legislation as a violation of the Takings Clause if it believes the~~
~~law’s restrictions have a severe economic impact on its business and interferes with its investors’~~
~~expectations.178 Such a challenge would likely be analyzed~~189 An analysis of the Protecting Americans from Foreign Adversary Controlled Applications Act, or another law regulating TikTok, under the under the Penn Central factors factors~~.179~~
~~This analysis is~~ would be inherently fact-specific and could depend, for example, on the extent of the inherently fact-specific and could depend, for example, on the extent of the
~~legislation~~act’s economic impact and the reasonableness of ByteDance’s expectations when it ’s economic impact and the reasonableness of ByteDance’s expectations when it
invested in musical.ly.invested in musical.ly.~~180~~190 As a general matter, any national security arguments invoked by the As a general matter, any national security arguments invoked by the
government could make it difficult for a Takings Clause challenge to succeed. Courts have government could make it difficult for a Takings Clause challenge to succeed. Courts have
observed that national security is a paramount governmental interest, and courts have said that observed that national security is a paramount governmental interest, and courts have said that
valid regulatory actions serving substantial national security interests weigh against a valid regulatory actions serving substantial national security interests weigh against a
determination that a compensable taking has occurred.determination that a compensable taking has occurred.~~181~~191
What Due Process considerations might be raised by government regulation of
TikTok?
Under the Fifth Amendment’s Due Process Clause, the federal government may not deprive any Under the Fifth Amendment’s Due Process Clause, the federal government may not deprive any
person of a protected property interest unless it provides them with notice of the deprivation and person of a protected property interest unless it provides them with notice of the deprivation and
an opportunity to be heard before a neutral party.an opportunity to be heard before a neutral party.~~182~~192 As with the Taking Clause, the Due Process Clause’s protections apply to U.S. persons and to foreign persons or entities that have “developed substantial connections” with the United States through presence or property.193 The Due Process Clause is primarily applied to actions taken by the executive branch; for legislative determinations, the Supreme Court has said that the legislative process may provide “all the process that is due”194 unless the law is “palpably arbitrary.”195 187 Buffalo Teachers Federation v. Tobe, 464 F.3d 362, 374 (2d Cir. 2006). 188 438 U.S. 104 (1978). 189 Ibid. at 124. 190 ~~As with the Taking Clause, the Due Process~~

~~174 Lingle, 544 U.S. at 537 (“The paradigmatic taking requiring just compensation is a direct government appropriation~~
~~or physical invasion of private property.”).~~
~~175 Buffalo Teachers Federation v. Tobe, 464 F.3d 362, 374 (2d Cir. 2006).~~
~~176 438 U.S. 104 (1978).~~
~~177 Ibid. at 124.~~
~~178 In 2020, ByteDance and TikTok raised arguments under the Takings Clause in a challenge to a Presidential Order~~
~~that had been issued under CFIUS authorities. See Petition for Review, TikTok v. CFIUS, No. 20-1444 (D.C. Cir. Nov.~~
10, 2020). Those arguments have not been ruled on by a court. See supra “~~What actions followed the 2019~~
~~Committee on Foreign Investment in the United States (CFIUS) investigation~~ ~~of the ByteDance acquisition of~~
~~musical.ly?”~~
~~179 Tahoe-Sierra, 535 U.S. at 330 (“Anything less than a ‘complete elimination of value,’ or a ‘total loss’ . . . would~~
~~require the kind of analysis applied in Penn Central.”) (quoting Lucas v. South Carolina Costal Council, 505 U.S.~~
~~1003, 1019–20, n.8 (1992)).~~
~~180~~ See A&D Auto Sales, Inc. v. United States, 748 F.3d 1142, 1159 (Fed. Cir. 2014) (“Assessing the reasonableness of See A&D Auto Sales, Inc. v. United States, 748 F.3d 1142, 1159 (Fed. Cir. 2014) (“Assessing the reasonableness of
a plaintiff’s [distinct investment-backed] expectations ‘is an objective, but fact-specific inquiry into what, under all the a plaintiff’s [distinct investment-backed] expectations ‘is an objective, but fact-specific inquiry into what, under all the
circumstances, the [plaintiff] should have anticipated.’” (quoting Cienega Gardens v. United States, 331 F.3d 1319, circumstances, the [plaintiff] should have anticipated.’” (quoting Cienega Gardens v. United States, 331 F.3d 1319,
1346 (Fed. Cir. 2003))). 1346 (Fed. Cir. 2003))).
~~181~~191 Haig v. Agee, 453 U.S. 280, 307 (1981) (“It is obvious and unarguable that no governmental interest is more Haig v. Agee, 453 U.S. 280, 307 (1981) (“It is obvious and unarguable that no governmental interest is more
compelling than the security of the Nation.”); Paradissiotis v. United States, 304 F.3d 1271, 1275 (Fed. Cir. 2002) compelling than the security of the Nation.”); Paradissiotis v. United States, 304 F.3d 1271, 1275 (Fed. Cir. 2002)
(“Valid regulatory measures taken to serve substantial national security interests may adversely affect individual (“Valid regulatory measures taken to serve substantial national security interests may adversely affect individual
contract-based interests and expectations, but those effects have not been recognized as compensable takings for Fifth contract-based interests and expectations, but those effects have not been recognized as compensable takings for Fifth
Amendment purposes.”). Amendment purposes.”).
~~182~~192 Kerry v. Din, 576 U.S. 86, 111 (2015) (Breyer, J., dissenting) (“Due Process Clause procedures . Kerry v. Din, 576 U.S. 86, 111 (2015) (Breyer, J., dissenting) (“Due Process Clause procedures . . .. normally . normally
include notice of an adverse action, an opportunity to present relevant proofs and arguments, before a neutral include notice of an adverse action, an opportunity to present relevant proofs and arguments, before a neutral
decisionmaker, and reasoned decisionmaking.”); Cleveland Bd. of Educ. v. Loudermill, 470 U.S. 532, 542 (1985) (“An decisionmaker, and reasoned decisionmaking.”); Cleveland Bd. of Educ. v. Loudermill, 470 U.S. 532, 542 (1985) (“An
~~(continued...)~~
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~~Clause’s protections apply to U.S. persons and to foreign persons or entities that have “developed~~
~~substantial connections” with the United States through presence or property.183 The Due Process~~
~~Clause is primarily applied to actions taken by the executive branch; for legislative~~
~~determinations, the Supreme Court has said that the legislative process may provide “all the~~
~~process that is due”184 unless the law is “palpably arbitrary.”185~~essential principle of due process is that a deprivation of life, liberty, or property be preceded by notice and opportunity for hearing appropriate to the nature of the case.”) (internal quotation marks and citation omitted). 193 See National Council of Resistance of Iran v. Department of State, 251 F.3d 192, 203 (D.C. Cir. 2001) (holding that a foreign entity, which had been designated by the State Department as a foreign terrorist organization, was entitled to due process protections because it “entered the territory of the United States and established substantial connections with this country”). 194 Atkins v. Parker, 472 U.S. 115, 116 (1985). 195 Kansas City Southern Ry. Co. v. Road Imp. Dist. No. 3 of Sevier County, Ark., 266 U.S. 379, 386 (1924). Congressional Research Service 25 TikTok: Frequently Asked Questions and Issues for Congress
Beyond the core requirement of notice and an opportunity for a hearing, the Due Process Clause’s Beyond the core requirement of notice and an opportunity for a hearing, the Due Process Clause’s
procedural requirements are flexible and may vary depending on the particular situation.procedural requirements are flexible and may vary depending on the particular situation.~~186~~196 To To
determine what procedures are required in any given case, courts apply a three-factor balancing determine what procedures are required in any given case, courts apply a three-factor balancing
test that the Supreme Court articulated in test that the Supreme Court articulated in Mathews v. Eldridge..~~187~~197 Under this test, the reviewing Under this test, the reviewing
court must weighcourt must weigh: (1) the private interests affected by the determination; (2) the risk of erroneous (1) the private interests affected by the determination; (2) the risk of erroneous
deprivation of such interests through the procedures the government used and the probable value, deprivation of such interests through the procedures the government used and the probable value,
if any, of additional or substitute procedures; and (3) the government’s interest at stake.if any, of additional or substitute procedures; and (3) the government’s interest at stake.~~188~~198
The application of this test can lead to different requirements in different circumstances. For The application of this test can lead to different requirements in different circumstances. For
example, the U.S. Court of Appeals for the D.C. Circuit has held that, before the President can example, the U.S. Court of Appeals for the D.C. Circuit has held that, before the President can
order a company to divest an acquisition under the CFIUS process, the government must first order a company to divest an acquisition under the CFIUS process, the government must first
provide the affected company with notice of the determination and an opportunity to rebut the provide the affected company with notice of the determination and an opportunity to rebut the
evidence supporting it.evidence supporting it.~~189~~199 On the other hand, when the government has added persons to sanctions On the other hand, when the government has added persons to sanctions
lists without prior notice, courts have concluded that the government’s interest in preventing lists without prior notice, courts have concluded that the government’s interest in preventing
“asset flight” outweighs litigants’ need for a pre-deprivation hearing.“asset flight” outweighs litigants’ need for a pre-deprivation hearing.~~190~~200
Courts have found it problematic when a party is unable to examine and challenge the evidence Courts have found it problematic when a party is unable to examine and challenge the evidence
on which a determination is based.on which a determination is based.~~191~~201 However, when a determination is based on classified However, when a determination is based on classified
information, courts have recognized that forcing the executive branch to disclose such information, courts have recognized that forcing the executive branch to disclose such
information would “compel a breach in the security which that branch is charged to protect.”information would “compel a breach in the security which that branch is charged to protect.”~~192~~202 In In
some cases, courts have deemed it sufficient for the government to provide unclassified some cases, courts have deemed it sufficient for the government to provide unclassified
summaries of the evidence or have required the government to submit the classified information summaries of the evidence or have required the government to submit the classified information
in camera for the court’s review (i.e., permitting only the court to view it).in camera for the court’s review (i.e., permitting only the court to view it).~~193~~

~~essential principle of due process is that a deprivation of life, liberty, or property be preceded by notice and opportunity~~
~~for hearing appropriate to the nature of the case.”) (internal quotation marks and citation omitted).~~
~~183 See National Council of Resistance of Iran v. Department of State, 251 F.3d 192, 203 (D.C. Cir. 2001) (holding that~~
~~a foreign entity, which had been designated by the State Department as a foreign terrorist organization, was entitled to~~
~~due process protections because it “entered the territory of the United States and established substantial connections~~
~~with this country”).~~
~~184 Atkins v. Parker, 472 U.S. 115, 116 (1985).~~
~~185 Kansas City Southern Ry. Co. v. Road Imp. Dist. No. 3 of Sevier County, Ark., 266 U.S. 379, 386 (1924).~~
~~186 Morrissey v. Brewer, 408 U.S. 471, 481 (1972).~~
~~187 424 U.S. 319, 334 (1976).~~
~~188 Nelson v. Colorado, 581 U.S. 128, 135 (2017); Mathews, 424 U.S. at 335.~~
~~189 Ralls Corp. v. CFIUS, 758 F.3d 296, 319–21 (D.C. Cir. 2014).~~
~~190~~203 Due Process Clause analysis may be particularly relevant if legislation provides for executive branch determinations. To comply with the Due Process Clause, any executive branch decision implicating TikTok or ByteDance’s property rights would likely need to provide, at a minimum, notice of the determination, ability to examine any unclassified evidence on which the decision was based, and an opportunity to rebut that evidence. Could a ban, divestiture, sale, or other efforts to regulate TikTok have broader policy implications for digital trade? Until 2023, the United States promoted the free flow of data across borders and opposed data localization requirements in its free trade agreements.204 These policies were included as 196 Morrissey v. Brewer, 408 U.S. 471, 481 (1972). 197 424 U.S. 319, 334 (1976). 198 Nelson v. Colorado, 581 U.S. 128, 135 (2017); Mathews, 424 U.S. at 335. 199 Ralls Corp. v. CFIUS, 758 F.3d 296, 319-321 (D.C. Cir. 2014). 200 For example, Al Haramain Islamic Foundation, Inc., v. U.S. Dep’t of Treasury, 686 F.3d 965, 985 (9th Cir. 2012) For example, Al Haramain Islamic Foundation, Inc., v. U.S. Dep’t of Treasury, 686 F.3d 965, 985 (9th Cir. 2012)
(“As the district court noted, and as many courts have held, the potential for ‘asset flight’ almost certainly justifies [the (“As the district court noted, and as many courts have held, the potential for ‘asset flight’ almost certainly justifies [the
Office of Foreign Asset Control’s] decision not to provide notice before freezing the assets.”). Office of Foreign Asset Control’s] decision not to provide notice before freezing the assets.”).
~~191~~201 Ralls Corp., 758 F.3d at 318 (“Both the Supreme court and this Court have recognized that the right to know the , 758 F.3d at 318 (“Both the Supreme court and this Court have recognized that the right to know the
factual basis for the action and the opportunity to rebut the evidence supporting the action are essential components of factual basis for the action and the opportunity to rebut the evidence supporting the action are essential components of
due process.”). due process.”).
~~192~~202 Fares v. Smith, 901 F.3d 315, 324 (D.C. Cir. 2019). Fares v. Smith, 901 F.3d 315, 324 (D.C. Cir. 2019).
~~193~~203 See ibid. See ibid. at 322at 322~~–24~~-324 (discussing cases where courts have required in camera review of classified evidence or have found sufficient unclassified summaries in lieu of classified evidence). 204 Data localization policies require that data generated within a country be stored and processed on servers within that country. For more information on issues related to cross-border data flows and digital trade policy, see CRS In Focus IF12347, Digital Trade and Data Policy: Key Issues Facing Congress, by Danielle M. Trachtenberg. Congressional Research Service 26 TikTok: Frequently Asked Questions and Issues for Congress ~~(discussing cases where courts have required in camera review of classified evidence or have~~
~~found sufficient unclassified summaries in lieu of classified evidence).~~
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~~Should Congress consider potential TikTok-related legislation, Due Process Clause analysis~~
~~would be particularly relevant if the legislation provided for executive branch determinations. To~~
~~comply with the Due Process Clause, any executive branch decision implicating TikTok or~~
~~ByteDance’s property rights would likely need to provide, at a minimum, notice of the~~
~~determination, ability to examine any unclassified evidence on which the decision was based, and~~
~~an opportunity to rebut that evidence.~~
~~What is Project Texas?~~
~~Formally announced by TikTok in January 2023, Project Texas is a program currently being~~
~~implemented by TikTok to address what it claims are the key national security concerns expressed~~
~~by the U.S. government during the company’s negotiations with the U.S. Department of Justice~~
~~following the 2019 CFIUS investigation (see~~ ~~What was the result of the 2019 CFIUS~~
~~Investigation of ByteDance?).194 The Department of Justice and CFIUS have declined to~~
~~comment on the U.S. government’s view of Project Texas, citing confidentiality obligations.~~
~~The core element of Project Texas, according to TikTok, is a localization of all data generated by~~
~~U.S. users and monitoring of cross-border data flows by a team based in the United States.~~
~~TikTok plans to do this through the establishment of a new subsidiary, TikTok U.S. Data Security~~
~~(USDS), based in the United States, which would be monitored by Oracle. USDS would also~~
~~manage the migration of all TikTok data traffic to Oracle Cloud, and, according to TikTok, would~~
~~establish a dedicated “transparency center” to allow Oracle employees to inspect TikTok’s source~~
~~code.195 As of August 2023, media reporting indicates that access to TikTok’s source code is a~~
~~point of contention between Oracle and TikTok employees, and that TikTok is imposing access~~
~~restrictions and surveillance requirements on Oracle employees that impedes their ability to~~
~~implement Project Texas.196 Several experts and Members of Congress contend that even if~~
~~Project Texas were to be fully implemented, it does not address the core problem of ByteDance~~
~~employee access to U.S. user data, which some experts argue could be maintained despite a~~
~~localization of data in the United States depending on how ByteDance and TikTok structure~~
~~internal data security protocols and access permissions.197~~
~~Could a ban, divestiture, sale or other efforts to regulate TikTok have broader~~
~~policy implications for digital trade?~~
~~Until 2023, the United States promoted the free flow of data across borders and opposed~~
~~data localization requirements in its free trade agreements.198 These policies were~~
~~included as~~ negotiating objectives in trade agreements beginning with the passage of the negotiating objectives in trade agreements beginning with the passage of the
most recent Trade Promotion Authority in 2015 (TPA-2015, P.L. 114-26). In fall 2023, most recent Trade Promotion Authority in 2015 (TPA-2015, P.L. 114-26). In fall 2023,
the Office of the United States Trade Representative (USTR) withdrew its support for the Office of the United States Trade Representative (USTR) withdrew its support for
proposals at the World Trade Organization (WTO) that supported open cross-border data proposals at the World Trade Organization (WTO) that supported open cross-border data
flows and opposed data localization. flows and opposed data localization. USTR also suspended digital trade talks in the Indo-~~USTR also suspended digital trade talks in the Indo-~~

~~194 Matt Perault and Samm Sacks, “Project Texas: The Details of TikTok’s Plan to Remain Operational in the United~~
~~States,” January 26, 2023.~~
~~195 TikTok, “When will Project Texas be fully operational?” press release, March 23, 2023.~~
~~196 Emily Baker-White, “As TikTok Ban Looms, ByteDance Battles Oracle For Control Of Its Algorithm,” Forbes,~~
~~August 24, 2023; Anissa Gardizy, “TikTok Says U.S. Survival Plan is Going Forward. Its Cloud Provider Isn’t So~~
~~Sure,” The Information, May 22, 2023.~~
~~197 Matt Perault, “What Happened to TikTok’s Project Texas?” Lawfare, March 20, 2024.~~
~~198 Data localization policies require that data generated within a country be stored and processed on servers within that~~
~~country. For more information on issues related to cross-border data flows and digital trade policy, see CRS In Focus~~
~~IF12347, Digital Trade and Data Policy: Select Key Issues, by Danielle M. Trachtenberg.~~
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Pacific Economic Framework for Prosperity. USTR Katherine Tai attributed the decision Pacific Economic Framework for Prosperity. USTR Katherine Tai attributed the decision
to the need for domestic policy “space” on digital economy issues given rapid to the need for domestic policy “space” on digital economy issues given rapid
technological advancement and shifting domestic conversations on regulation of the technological advancement and shifting domestic conversations on regulation of the
technology sector.technology sector.~~199~~205
Data security
Both Congress and the Biden Administration are considering restricting cross-border data Both Congress and the Biden Administration are considering restricting cross-border data
flows or supporting data localization in instances when national security or the security of flows or supporting data localization in instances when national security or the security of
sensitive data on U.S. citizens is at risk. sensitive data on U.S. citizens is at risk. ~~A February 2024 executive order by the Biden~~
~~Administration~~The Biden Administration issued Executive Order 14117 in February 2024, which aims to restrict access to Americans’ personal data and American aims to restrict access to Americans’ personal data and American
government related data when access poses an “unacceptable national security risk” by government related data when access poses an “unacceptable national security risk” by
prohibiting and restricting certain transactions with foreign adversaries, including prohibiting and restricting certain transactions with foreign adversaries, including
~~China.200 Recent proposed legislation also aims to prevent access to~~China.206 The Protecting Americans’ Americans’ ~~personal~~
~~data by foreign adversaries by restricting the activities of data brokers, including the~~
Data from Foreign Adversaries Act of 2024 (P.L. 118-50, Division I), enacted alongside the Protecting AmericansProtecting Americans~~’ Data from Foreign Adversaries Act (H.R. 7520) and the Protecting~~
~~Military Servicemembers’ Data Act of 2023 (H.R. 6573).~~
~~Data localization~~
~~A component of Tik Tok~~ from Foreign Adversary Controlled Applications Act, introduces new restrictions on data brokers selling or transferring certain U.S. user data to foreign adversaries or certain entities under their control. Data localization A component of TikTok’s Project Texas is the storage of U.S. user data in servers in ’s Project Texas is the storage of U.S. user data in servers in
Oracle’s U.S. cloud environment with access to that data controlled by TikTok USDS, Oracle’s U.S. cloud environment with access to that data controlled by TikTok USDS,
which would be overseen by an independent board.which would be overseen by an independent board.~~201~~207 This component of Project Texas, This component of Project Texas,
~~if mandated by the Committee on Foreign Investment in the United States (CFIUS)~~if mandated by CFIUS or or
another U.S. government entity, would be an example of an attempted data localization another U.S. government entity, would be an example of an attempted data localization
requirement. requirement.
Digital trade policy
USTR has not announced new digital trade policy goals for future discussions with other USTR has not announced new digital trade policy goals for future discussions with other
countries or put forth new proposals at the WTO. U.S. trade partners, industry, and other interests countries or put forth new proposals at the WTO. U.S. trade partners, industry, and other interests
could regard U.S. action on TikTok as a signal of the future direction of U.S. digital trade policy. could regard U.S. action on TikTok as a signal of the future direction of U.S. digital trade policy.
Further Reading
CRS Report R47662, CRS Report R47662, Defining and Regulating Online Platforms, coordinated by Clare Y. Cho. , coordinated by Clare Y. Cho.
CRS Legal Sidebar LSB10940, CRS Legal Sidebar LSB10940, Restricting TikTok (Part I): Legal History and Background, by , by
Steve P. Mulligan. Steve P. Mulligan.
CRS Legal Sidebar LSB10942, CRS Legal Sidebar LSB10942, Restricting TikTok (Part II): Legislative Proposals and
Considerations for Congress, coordinated by Peter J. Benson. , coordinated by Peter J. Benson.
~~CRS Legal Sidebar LSB10972, Montana’s TikTok Ban, an Injunction, and Pending Legal Actions,~~
~~by Sanchitha Jayaram and Madeline W. Donley.~~

~~199~~ 205 Fireside chat with USTR Katherine Tai, Aspen Security Forum, December 7, 2023. Remarks available at Fireside chat with USTR Katherine Tai, Aspen Security Forum, December 7, 2023. Remarks available at
https://www.aspensecurityforum.org/dc-2023-videos. https://www.aspensecurityforum.org/dc-2023-videos.
~~200 Executive Office of the President,~~206 Executive Order 14117 Executive Order 14117 , “Preventing Access to Americans’ Bulk Sensitive Personal Preventing Access to Americans’ Bulk Sensitive Personal
Data and United States Government-Related Data by Countries of Concern,Data and United States Government-Related Data by Countries of Concern,” 89 Federal Register 15421, February 28, 2024. February 28, 2024.
~~201~~207 TikTok U.S. Data Security, “About Project Texas,” available at https://usds.tiktok.com/usds-about/. TikTok U.S. Data Security, “About Project Texas,” available at https://usds.tiktok.com/usds-about/.
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CRS Legal Sidebar CRS Legal Sidebar ~~LSB11127,~~ ~~H.R. 7521 Regulation of TikTok~~LSB10972, Montana’s TikTok Ban, an Injunction, and Pending Legal Actions, by Sanchitha Jayaram and Madeline W. Donley. CRS Legal Sidebar LSB11127, Regulation of TikTok Under the Protecting Americans from Foreign Adversary Controlled Applications Act: Analysis of Selected Legal
Issues, by Peter J. Benson, Valerie C. Brannon, and Joanna R. Lampe. , by Peter J. Benson, Valerie C. Brannon, and Joanna R. Lampe.
CRS In Focus CRS In Focus IF11334, CFIUS: New Foreign Investment Review RegulationsIF10177, The Committee on Foreign Investment in the United States, by Cathleen D. , by Cathleen D.
Cimino-IsaacsCimino-Isaacs.
and Karen M. Sutter. CRS In Focus IF12640, TikTok and China’s Digital Platforms: Issues for Congress, by Karen M. Sutter and Michael D. Sutherland. CRS In Focus IF11803, CRS In Focus IF11803, U.S. Capital Markets and China: Issues for Congress, by Michael D. , by Michael D.
Sutherland and Karen M. Sutter. Sutherland and Karen M. Sutter.
CRS In Focus IF12347, CRS In Focus IF12347, Digital Trade and Data Policy: ~~Select~~ Key Issues Facing Congress, by Danielle M. , by Danielle M.
Trachtenberg. Trachtenberg.
Co-Authors and Contributors
The CRS Analysts listed below co-authored and contributed to this report: The CRS Analysts listed below co-authored and contributed to this report:
• Peter J. Benson, Legislative Attorney ( • Peter J. Benson, Legislative Attorney (Co-Coordinator) Coordinator)
• Valerie C. Brannon, Legislative Attorney • Valerie C. Brannon, Legislative Attorney
• Kristen E. Busch, Analyst in Science and Technology Policy (• Kristen E. Busch, Analyst in Science and Technology Policy (Co-Coordinator) Coordinator)
• Cathleen Cimino-Isaacs, Specialist in International Trade and Finance • Cathleen Cimino-Isaacs, Specialist in International Trade and Finance
• Clare Y. Cho, Specialist in Industrial Organization and Business Policy • Clare Y. Cho, Specialist in Industrial Organization and Business Policy
• Joanna R. Lampe, Legislative Attorney • Joanna R. Lampe, Legislative Attorney
• Chris D. Linebaugh, Legislative Attorney • Chris D. Linebaugh, Legislative Attorney
• Michael D. Sutherland, Analyst in International Trade and Finance (Coordinator) • Michael D. Sutherland, Analyst in International Trade and Finance (Coordinator)
• Karen M. Sutter, Specialist in Asian Trade and Finance • Karen M. Sutter, Specialist in Asian Trade and Finance
• Danielle M. Trachtenberg, Analyst in International Trade and Finance • Danielle M. Trachtenberg, Analyst in International Trade and Finance
• Ling Zhu, Analyst in Telecommunications Policy • Ling Zhu, Analyst in Telecommunications Policy

Author Information

Michael D. Sutherland, Coordinator Michael D. Sutherland, Coordinator
~~Peter J. Benson, Coordinator~~Kristen E. Busch
Analyst in International Trade and Finance Analyst in International Trade and Finance
~~Legislative Attorney~~

~~Kristen E. Busch, Coordinator~~

~~Analyst in Science and Technology Policy~~Analyst in Science and Technology Policy Peter J. Benson Legislative Attorney

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